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Bryan E. Ransom v. Rodolfo Aguirre

January 30, 2013

BRYAN E. RANSOM, PLAINTIFF,
v.
RODOLFO AGUIRRE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE

Plaintiff Bryan E. Ransom ("Plaintiff") is a prisoner proceeding pro se in this civil rights action. Plaintiff originally filed his action in the Kings County Superior Court on June 26, 2012. Defendants paid the filing fee and removed the action on August 16, 2012.*fn1 Plaintiff names the following Defendants: Correctional Sergeants R. Vogel and Perez, Correctional Officers Mariscal, Cortez, M. Singh, R. Martines, D. Vellejo, R. Aguirre, B. Wooden, Alanis and Mussick, doctors Ulit, Wang, Moon and Clark, CDCR undersecretary S. Kernan, and numerous John Does. Plaintiff's complaint is now before the Court for screening.

A. LEGAL STANDARD

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 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is confined in the Secured Housing Unit ("SHU") at Corcoran State Prison, where the events at issue in this action occurred.

Plaintiff contends that on July 1, 2011, he notified Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden and medical staff John Does 1-10, that he was a participant in a statewide indefinite prisoner solid-food hunger strike. The hunger strike was launched in response to the conditions in SHUs throughout CDCR.

Plaintiff alleges that in retaliation for his hunger strike, which he contends did not violate any rules, Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden and John Does 11-20, implemented and/or enforced a policy and practice that prohibited inmates who were on any type of hunger strike from receiving their daily state issue bag lunches and meal trays. This policy deprived Plaintiff of his daily state issue of "non-solid" food items for nineteen consecutive days.*fn2 Plaintiff alleges that under 15 Cal. Code Regs. § 3050(a)(1), Defendants had a responsibility to give him his daily state issue of non-solid food items. He further alleges that to cover up their deprivation, Defendants placed false entries in the daily activity log indicating that Plaintiff had refused his meals and/or tray.

On July 15, 2011, Plaintiff told medical staff John Does 1-10 that prison officials were withholding his daily state issue of non-solid food items, which was causing him great pain and extreme weight loss. Defendant John Doe 1 stated that this was a custody issue, and that medical staff would not intervene until Plaintiff passed out from starvation and/or dehydration. Plaintiff contends that pursuant to 15 Cal.Code Regs. § 3350(a), John Does 1-10 had a responsibility to intervene in the deprivation.

On July 19, 2011, Plaintiff "fell out" and was taken to Corcoran's emergency room. Plaintiff told Defendant Dr. Ulit that he was on his nineteenth day of an indefinite hunger strike of all solid foods, and that for the last nineteen days, prison officials had been withholding his daily state issue of non-solid food items. Defendant Ulit found Plaintiff to be dehydrated and malnourished and admitted him to Corcoran's hospital for observation and treatment. He ordered that Plaintiff be intravenously rehydrated and placed on a 1,125 calorie liquid diet. Defendant Ulit explained the dangers and medical protocol of the liquid diet, and told Plaintiff that the caloric intake would gradually increase to 2,000 to 2,500 calories per day over a period of five to seven days. He contends that Defendant Ulit failed to follow up on Plaintiff's medical treatment and in retaliation for Plaintiff exercising his right not to eat solid food, Defendants Wang, Moon, Clark and medical staff John Does 21-30 refused to increase his caloric intake to 2,000 to 2,500 calories per day.

On August 1, 2011, Defendant Clark told Plaintiff that his medical treatment was too expensive, set a bad precedent and was no longer in the political interest of CDCR. Defendant Clark and medical staff John Does 21-30 discontinued Plaintiff's liquid diet of 1,125 calories and discharged him from the hospital. Plaintiff contends that pursuant to 15 Cal. Code Regs. § 3350(a), Defendants Ulit, Wang, Moon, Clark and medical staff John Does 21-30 had a responsibility to gradually increase and maintain his liquid diet and retain him in the Corcoran hospital.

On August 5, 2011, Plaintiff temporarily discontinued his hunger strike as a good faith gesture to the administration's proposed resolutions to the conditions of the SHU. On September 21, 2011, communications broke down and Defendant Kernan issued a memorandum indicating that further participation in the hunger strike would result in disciplinary actions against the participating prisoners.

On October 2, 2011, Plaintiff placed Defendants Alanis, Mussick and John Does 31-40 on notice that he was resuming his indefinite hunger strike of all solid foods. He contends that in retaliation, Defendants Alanis, Mussick and John Does 31-40 withheld Plaintiff's daily state issue of non-solid food items for thirteen days. Plaintiff contends that pursuant to 15 Cal. Code Regs. § 3050(a)(2), Defendants had a responsibility to give him his daily state issue of non-solid food items. To cover their deprivation, Plaintiff alleges that Defendants Alanis, Mussick and John Does 31-40 indicated in the activity log that Plaintiff refused his meals.

Between July 1 and July 6, 2011, Plaintiff wrote three press releases placing the media on notice of the hunger strike. He gave one press release, in a prepaid self-addressed envelope, to Defendant Aguirre for mailing, and two press releases to Defendant Wooden for mailing. Plaintiff alleges that in retaliation, Defendants Aguirre, Wooden and John Does 41-50 withheld the press releases and did not mail them to the media. He contends that pursuant to 15 Cal. Code Regs., § 3130, Defendants Aguirre, Wooden and John Does 31-40 had a responsibility to mail the press releases.

Based on these allegations, Plaintiff alleges the following causes of action:

1. Retaliation in violation of the First Amendment against Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden, Alanis, Mussick and John Does 11-20 and 31-40;

2. Withholding food in violation of the Eighth Amendment against Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden, Alanis, Mussick, and John Does 11-20 and 31-40;*fn3

3. Failure to provide medical treatment in violation of the Eighth Amendment against Defendants Ulit, Wang, Moon, Clark and John Does 1-10 and 21-30;

4. Retaliation in violation of the First Amendment against Defendants Wang, Moon, Clark and John Does 21-30;

5. Retaliation in violation of the First Amendment against Defendant Kernan;

6. Retaliation in violation of the First Amendment against Defendants Aguirre, Wooden and John Does 41-50;

7. Censorship in violation of the First Amendment against Defendants Aguirre, Wooden and John Does 41-50;

8. Negligence against Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden, Alanis, Mussick and John Does 11-20 and 31-40;

9. Medical negligence against John Does 1-10;

10. Medical malpractice against Defendants Ulit, Wang, Moon, Clark and ...


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