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Walter Howard White v. D. Smyers


December 12, 2012


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, id. However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A. Misjoinder of Parties

In the lengthy complaint filed November 26, 2012, plaintiff brings claims against 29 named defendants and 14 Doe defendants for events occurring while plaintiff was housed at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California; Salinas Valley State Prison ("SVSP") in Soledad, California; and, most recently, at High Desert State Prison ("HDSP") in Susanville, California. The thread tying these different defendants located at different institutions together is their treatment (or lack thereof) of plaintiff's various medical ailments, which include a Baker's cyst located in the back of his right knee, a job-related spinal injury plaintiff suffered while housed at CSATF, and a failed August 11, 2009 total knee replacement ("TKR") surgery plaintiff underwent while housed at SVSP.

Pursuant to Federal Rule of Civil Procedure 20(a), individuals may be joined in one action as defendants if any right to relief asserted against them arises out of the same transaction, occurrence, or series of transactions and occurrences, and any question of law or fact common to all defendants will arise in the action. See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("Unrelated claims against unrelated defendants belong in different suits"). If unrelated claims are improperly joined, the court may dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & Mary Kay Kane, Richard Marcus, Fed. Prac. & Proc. Civ. 3d § 1684 (2012); Michaels Building Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under Rule 21 of certain defendants where claims against those defendants did not arise out of the same transaction or occurrences, as required by Rule 20(a)).

Plaintiff asserts that all of the defendants are properly joined in this suit because their mistreatment of his medical problems forms a "continuing harm." Having reviewed the multiple claims asserted in the complaint, however, the court finds that they do not all arise from the same transaction, occurrence, or series of transactions or occurrences. While all of the claims, generally, relate to the defendants' allegedly inadequate provision of medical care, each claim arises out of different facts and circumstances and is materially different in nature from the others. The defendants' actions are also temporally separated from each other by years.

The court cannot allow plaintiff's unrelated claims to proceed in the same action. See Fed. R. Civ. P. 20, 21. The court will permit plaintiff to pursue in the current action only those claims over which this court has jurisdiction -- namely, claims brought against defendants at HDSP. Plaintiff's remaining claims will be dismissed without prejudice to plaintiff asserting them in a separate action.

B. Plaintiff's Claims

As to the remaining claims directed at staff located at or affiliated with HDSP, plaintiff identifies 17 defendants by name and 14 Doe defendants. These defendants include Doctors Mayes, Lee, Rofling, Pomazal; Nurse Practitioners Tyler and Schmidt; Physical Assistant Miranda; Doctor or Physical Assistant Lankford; Chief Medical Officer Swingle; HDSP Chief Executive Officer Young; Appeals Staff Frazier and Garbutt; and Staff Services Managers Shea, Aguila, Mules, and Milliken; and Chief of Inmate Appeals Zamora.

Plaintiff's claims against these defendants are as follows: (1) upon plaintiff's arrival at HDSP on September 22, 2010, Miranda denied plaintiff medical care, falsified medical reports, and confiscated medical devices previously issued to plaintiff; (2) between September 22, 2010 and October 13, 2010, plaintiff was not issued his prescribed pain medication, and Tyler, Lankford, Miranda, and Lee failed to take corrective action regarding this issue; (3) Mayes, Schmidt, and Rofling inadequately treated plaintiff's medical needs; (4) HDSP defendants Miranda, Pomazal, Lee, Swingle, and Zamora reviewed plaintiff's inmate grievances complaining of inadequate medical care and failed to take corrective medical action; (5) CPHCS defendants Shea, Aguila, Nules, Milliken, and Zamora reviewed plaintiff's complaints of deliberate indifference by California Department of Corrections and Rehabilitation ("CDCR") medical personnel, including HDSP officials, and failed to take corrective medical action; (6) defendants Frazier, Young, Swingle, and Zamora acted in conspiracy to thwart plaintiff's administrative appeal exhaustion efforts by attempting to cover up the institution's failure to timely return plaintiff's appeal following the second level of review and then by screening out plaintiff's appeal at the third level of review as untimely; (7) defendant Garbutt and Zamora violated plaintiff's due process rights by improperly responding to plaintiff's grievances; (8) defendants Miranda, Mayes, Rofling, Schmidt, Swingle, and Pomazal discriminated against plaintiff on account of his disability in violation of the Americans with Disabilities Act ("ADA") when they improperly seized plaintiff's wheelchair and cane; and (9) defendants Miranda and Swingle violated plaintiff's religious beliefs (plaintiff is a Jehovah's Witness) and need to abstain from blood transfusions.

While the court finds many of plaintiff's allegations sufficient to state a claim, the undersigned notes the following deficiencies.

1. Claim Against Tyler, Lankford, Miranda, and Lee re: Prescription Medication Plaintiff's claim that defendants Tyler, Lankford, Miranda, and Lee did not take corrective action regarding HDSP staff's failure to administer prescription medication to plaintiff upon his arrival at HDSP fails as conclusory. Plaintiff does not present any facts that would lead to the inference that these defendants were aware that plaintiff's prescription medication was not being administered. Insofar as plaintiff references exhibits attached to the complaint as the source of the facts underlying this claim, the court notes that these exhibits number nearly 300 pages, and plaintiff is cautioned that it is the court's duty to evaluate the factual allegations within a complaint, not to wade through exhibits to determine whether cognizable claims have been stated. Accordingly, this claim will be dismissed with leave to amend.

2. Conspiracy Claims Against Appeals Defendants Plaintiff spends a considerable portion of his complaint accusing those defendants involved in review of his inmate appeals -- Frazier, Garbutt, Young, and Pomazal -- of participating in a conspiracy to obstruct plaintiff's administrative appeal exhaustion efforts. These claims arise out of the defendants' alleged delay in returning a medical grievance plaintiff filed in which he requested adequate medical care.

To state a conspiracy claim under § 1983, a plaintiff must show (1) an agreement between the defendants to deprive the plaintiff of a constitutional right, (2) an overt act in furtherance of the conspiracy, and (3) a constitutional deprivation. Garcia v. Grimm, 2011 U.S. Dist. LEXIS 20522, at *24 (S.D. Cal. Mar. 2, 2011); see also Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999). "To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989). Because conspiracies are secret agreements, "[a] defendant's knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant's actions." Gilbrook, 177 F.3d at 856-57.

To plead a claim of conspiracy under § 1983, plaintiff must allege facts with sufficient particularity to show an agreement or a meeting of the minds to violate the plaintiff's constitutional rights. Miller v. California, 355 F.3d 1172, 1177 n.3 (9th Cir. 2004); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand [dismissal]." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977).

Courts in the Ninth Circuit have required a plaintiff alleging a conspiracy to violate civil rights to state specific facts to support the existence of the claimed conspiracy. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 (9th Cir. 2004) (discussing conspiracy claim under § 1985); Harris v. Roderick, 126 F.3d 1189, 1195-96 (9th Cir. 1997) (applying heightened pleading standard to Bivens*fn1 conspiracy claims); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) ("To state a claim for conspiracy to violate one's constitutional rights under § 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy."); accord Bashkin v. Hickman, 2008 U.S. Dist. LEXIS 4326, at *4 (S.D. Cal. Jan. 17, 2008).

In the complaint filed here, plaintiff's allegations of conspiracy directed at defendants Frazier, Young, and Zamora are conclusory, at best. See, e.g,, Compl. ¶ 141. Plaintiff interprets the collective non-responsiveness of HDSP personnel to his grievances to be evidence of conspiracy. This, however, without more, fails to meet the particularized factual requirement for conspiracy claims. Accordingly, this claim will be dismissed with leave to amend. Should plaintiff choose to reallege this claim, he shall set forth specific facts to support the existence of the claimed conspiracy.

3. Due Process Claim

Plaintiff claims defendants Garbutt and Zamora violated plaintiff's due process rights by improperly responding to plaintiff's grievances. Yet "[a prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner's administrative appeal cannot serve as the basis for liability under a section 1983 action. Buckley, 997 F.2d at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, plaintiff fails to state a cognizable claim for the processing and/or reviewing of his inmate appeal by Garbutt and Zamora, and plaintiff's claims regarding the inmate appeals process shall be dismissed.

4. Americans with Disabilities Act Claim

Pursuant to Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under 42 U.S.C. § 12132, a plaintiff must allege that (1) he is "an individual with a disability," (2) he is "otherwise qualified to participate in or receive the benefits of some public entity's services, programs, or activities," (3) he was "either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity," and (4) the exclusion, denial, or discrimination was "by reason of" his disability. See McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002)) (internal quotes omitted).

The ADA authorizes suits by private citizens for money damages against public entities, Unites States v. Georgia, 546 U.S. 151, 153 (2006), and Title II of the ADA "unmistakably includes state prisons" as covered public entities. Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). Further, medical care is "one of the 'services, programs, or activities' covered by the ADA." Kiman v. N.H. Dept. of Corrs., 451 F.3d 274, 284 (1st Cir. 2006). The "alleged deliberate refusal of prison officials to accommodate [a prisoner's] disability-related needs in such fundamentals as ... medical care ... constitutes exclusion from participation in or ... denial of the benefits of the prison's services, programs, or activities." Georgia, 546 U.S. at 157.

While evidence of discriminatory medical care can constitute a claim under the ADA, claims based solely on provision of inadequate or negligent medical care are not cognizable under the ADA. See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1021-22 (9th Cir. 2010) ("The ADA prohibits discrimination because of disability, not inadequate treatment for disability."); see also Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1997) ("The ADA does not create a remedy for medical malpractice."); Marlor v. Madison Cty., Idaho, 50 F. App'x 872, 873 (9th Cir. 2002) ("Inadequate medical care does not provide a basis for an ADA claim unless medical services are withheld by reason of a disability."). However, a plaintiff may have a valid claim under the ADA where he can show that defendant "discriminated against [him] because of his [disability], not by providing him with inadequate care, but by denying him immediate access to prescribed medications[.]" McNally v. Prison Health Servs., 46 F. Supp. 2d. 49, 58-59 (D. Me. 1999).

Here, plaintiff accuses defendants Miranda, Mayes, Schmidt, Rofling, Swingle, and Pomazal of violating the ADA by refusing and/or failing to secure a wheelchair and/or specialized back brace and other in-prison accommodations for his disabilities. "'Title II of the ADA prohibits discrimination in programs of a public entity or discrimination by any such entity.'" Roundtree v. Adams, 2005 WL 3284405, at *8 (E.D. Cal. Dec.1, 2005) (quoting Thomas v. Nakatani, 128 F. Supp. 2d 684, 691 (D. Haw. 2000)). "The ADA defines 'public entity' in relevant part as 'any State or local government' or 'any department, agency, special purpose district, or other instrumentality of a State or States or local government.'" Roundtree, 2005 WL 3284405, at *8 (citing 42 U.S.C. § 12131(1)(A)-(B)). Public entity, "'as it is defined within the statute, does not include individuals.'" Id. (quoting Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)). Therefore, individual liability is precluded under Title II of the ADA, and any claim a plaintiff might intend to make under the ADA against an individual defendant is not cognizable.

To the extent that plaintiff has named these defendants in both their individual and official capacities, the court will proceed with plaintiff's ADA claim against defendant Chief Medical Officer Swingle in his official capacity because a suit against an individual in his official capacity is considered to be a suit against the entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). There does not appear to be a reason to have the other named defendants proceed as a stand-in for HDSP.

5. Religious Freedom Claim

Plaintiff's religious freedom claim is also so vague and conclusory that the court is unable to determine whether it is frivolous or fails to state a claim for relief. This claim will also be dismissed with leave to amend.

If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

Finally, the federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (noting that "nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b)"); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff's claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim."); Fed. R. Civ. P. 8. Plaintiff must not include any preambles, introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, summaries, and the like. McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for violation of Rule 8 after warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that "firm application of the Federal Rules of Civil Procedure is fully warranted" in prisoner cases). The court (and defendants) should be able to read and understand plaintiff's pleading within minutes. McHenry, 84 F.3d at 1179-80. A long, rambling pleading including many defendants with unexplained, tenuous or implausible connections to the alleged constitutional injury, or joining a series of unrelated claims against many defendants, very likely will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing plaintiff's action pursuant to Fed. R. Civ. P. 41 for violation of these instructions.

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

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Plaintiff's claims arising before his arrival at HDSP on September 22, 2010 are dismissed without prejudice to their renewal in a separate action;

4. Plaintiff has the option as to how to proceed with this action. He may either proceed with the complaint as screened in this order, or he can file an amended complaint within thirty days from the date of this order. If plaintiff chooses to amend his complaint, he shall complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and b. An original and one copy of the Amended Complaint.

Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint."

Plaintiff is reminded that an Amended Complaint must be limited to claims arising from his custody at HDSP.

If the court does not receive an amended complaint within thirty days of the date of this order, the court will construe plaintiff's failure to file an amended complaint as consent to dismissal of all deficient claims identified in this order without prejudice.


WALTER HOWARD WHITE, Plaintiff, v. D. SMYERS, et al., Defendants.


No. 2:12-cv-2868 MCE AC P

Plaintiff hereby submits the following document in compliance with the court's order filed

______________ Amended Complaint DATED:


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