CHARLIE D. JACKSON, F03949, Plaintiff(s),
CALIFORNIA DEP'T OF CORRECTIONS & REHABILIATION, et al., Defendant(s).
ORDER OF SERVICE
CHARLES R. BREYER, District Judge.
Plaintiff, a former prisoner at San Quentin State Prison (SQSP) who is no longer in custody, has filed a pro se Second Amended Complaint (SAC) for damages under 42 U.S.C. § 1983 alleging various wrongdoing during his incarceration at SQSP. Plaintiff specifically alleges that he was denied mental health treatment by medical staff, and was subjected to excessive force, food contamination and verbal harassment by correctional officers.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that SQSP doctors and psychologists denied him treatment for his mental illnesses (including depression and anxiety) despite his repeatedly asking for treatment. Liberally construed, plaintiff allegations appear to state a cognizable § 1983 claim for deliberate indifference to serious medical needs against Drs. R. Fong, Kahn (or Cahn) and Freiha, and will be ordered served on these three named defendants. See Doty v. County of Lassen , 37 F.3d 540, 546 (9th Cir. 1994) (mentally ill prisoner may establish unconstitutional treatment on behalf of prison officials by showing that officials were deliberately indifferent to his serious medical needs); see also Hoptowit v. Ray , 682 F.2d 1237, 1253 (9th Cir. 1982) (mental health care requirements analyzed as part of general health care requirements).
Plaintiff alleges that correctional officers routinely contaminated his food, and verbally harassed him. Although regrettable, allegations of mere verbal harassment and abuse fail to state a cognizable § 1983 claim. See Freeman v. Arpaio , 125 F.3d 732, 738 (9th Cir. 1997), overruled in part on other grounds by Shakur v. Schriro , 514 F.3d 878, 884-85 (9th Cir. 2008). But liberally construed, plaintiff's allegations that correctional officers H. De Leon, K. Altunc, K. France, Burkle and Stubbs deliberately contaminated his food appear to state a cognizable § 1983 claim for deliberate indifference to plaintiff's health and safety, and will be served on these named defendants. See Farmer v. Brennan , 511 U.S. 825, 832, 837 (1994) (prison official is deliberately indifferent under 8th Amendment if he knows of and disregards an excessive risk to inmate health or safety).
Plaintiff alleges that correctional officers used excessive force against him. Specifically, plaintiff alleges that Correctional Officer Fry used excessive force when he grabbed and squeezed plaintiff's testicles four times and joked out loud, "nothing there, pussy, " and that Correctional Officer Szmaciarz used excessive force when he slammed plaintiff's face into the cell bars splitting plaintiff's lip. Liberally construed, plaintiff's allegations appear to state a cognizable § 1983 claim for use of excessive force against correctional officers Fry and Szmaciarz, and will be served on these two named defendants. See Hudson v. McMillian , 503 U.S. 1, 6-7 (1992) (8th Amendment prohibits prison officials from using force sadistically and maliciously to cause harm).
Plaintiff also alleges that he complained to Warden K. Chappell and Sgt. L. Barnes about the various wrongdoing described above to no avail. Liberally construed, plaintiff's allegations appear to state a cognizable § 1983 claim against Warden K. Chappell and Sgt. L. Barnes for deliberate indifference to plaintiff's health and safety, and will be served on these two named defendants. See Farmer , 511 U.S. at 832, 837.
But plaintiff's allegations that Correctional Officer Margate improperly entered his cell and took his personal property are dismissed because deprivation of property fails to state a cognizable claim under § 1983 where, as here, state law provides an adequate post-deprivation remedy. See Barnett v. Centoni , 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895). Correctional Officer Margate and the California Department of Corrections and Rehabilitation (CDCR) are dismissed. CDCR is named on the theory that it is liable for the actions of its employees and it is well established that there is no § 1983 liability under such a theory, i.e., a theory of respondeat superior liability. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989) (under no circumstances is there liability under § 1983 solely because one is responsible for the actions or omissions of another).
For the foregoing reasons and for good ...