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Asberry v. Beard

United States District Court, S.D. California

August 12, 2014

TONY ASBERRY, CDCR #P-63853, Plaintiff,


WILLIAM Q. HAYES, District Judge.


Tony Asberry ("Plaintiff"), a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") in San Diego, California is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983.

In his original Complaint, Plaintiff alleged various RJD officials violated his Eighth Amendment right to be free from cruel and unusual punishment by providing him inadequate medical care after he was transferred there in March 2012 from California State Prison-Sacramento. Plaintiff further alleged RJD officials did so in retaliation for his having filed CDC 602 inmate appeals and a prior civil rights action related to his medical care in the Eastern District of California. See Compl. (Doc. No. 1) at 2-14.

On April 22, 2014, the Court granted Plaintiff's Motion to Proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his Complaint sua sponte for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A(b) (Doc. No. 15). Specifically, the Court dismissed Plaintiff's claims against Defendants Cate and Paramo because his pleading "contain[ed] virtually no allegation that either of [them] knew of or took any part" in personally causing him constitutional injury. Id. at 6-8. The Court further found that while Plaintiff's allegations of chronic lower back pain were sufficiently pleaded to show an "objectively serious medical need" under the Eighth Amendment, id. at 10, he failed to allege further facts to show that Defendants Walker, Silva, Denbella, Chow, Newton, or Doe, acted with deliberate indifference to that need. Id. at 11-12. Finally, the Court found Plaintiff's allegations of retaliation also failed to state a claim because his Complaint did not contain sufficient factual matter to show any named defendant took adverse action against him because he exercised a constitutional right, that their actions failed to advance a legitimate correctional goal, or that his First Amendment rights were in any way chilled as a result. Id. at 12-13. Plaintiff was granted leave to file an Amended Complaint to correct these deficiencies, and cautioned that because an amended pleading supersedes the original, any claims not re-alleged would be considered waived. Id. at 13-14.

On June 11, 2014, Plaintiff submitted a First Amended Complaint which deleted reference to Defendants Cate, Denbella, and John Doe, Medical Doctor, but which re-alleged his Eighth Amendment claims against previously-named Defendants Walker, Silva, Chow, and Newton, and alleged additional access to courts claims against newly added Defendants Beard, Benyard, Allemby, Rutledge, Hernandez, Toledo, Godinez, Morales, Taylor, and unidentified Jane and John Does (Doc. No. 24).

On June 17, 2014, Plaintiff also filed a Motion for Preliminary Injunctive Relief (Doc. No. 26) related to a "new" policy in RJD Fac-B Building 6, which he describes as a "campaign directed at keeping him awake." Id. at 8. On June 26, 2014, Plaintiff also filed a Motion requesting court-ordered "physical library use" (Doc. No. 29).

In the interim, on June 24, 2014, Plaintiff filed a Notice indicating his desire to file a Second Amended Complaint (Doc. No. 27), based on claims that he "never received" the Court's April 22, 2014 Order dismissing his original complaint for failing to state a claim, and therefore, he did not have the "opportunity to correct his mistake[s]" when he filed his First Amended Complaint. Id. at 2. Therefore, when on June 30, 2014, Plaintiff submitted a Second Amended Complaint (Doc. No. 31), the Court accepted it for filing as the now-operative pleading in light of the liberality required by FED.R.CIV.P. 15, Plaintiff's pro se status, and his claims of non-receipt as alleged in his June 24, 2014 Notice.[1] See FED.R.CIV.P. 15(a)(2) ("The court should freely give leave [to amend] when justice so requires."); United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) ("Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality.") (internal quotation omitted); Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (applying Rule 15's leave to amend standards "even more liberally to pro se litigants.").


A. Standard of Review

As Plaintiff is aware, notwithstanding his IFP status or the payment of any partial filing fees, the Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program, " "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

All complaints 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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id .; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

However, while the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, " Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

B. Respondeat Superior and Individual Liability

First, Plaintiff re-names RJD Warden Paramo, and adds Jeffrey Beard, the current Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), as Defendants.[2] See Second Amend. Compl. (Doc. No. 31) at 2. Plaintiff claims Paramo and Beard are "in charge" of "every facility at RJD" and "all prisons in the State of California, " respectively, id., but his Second Amended Complaint, like his original, contains no "further factual enhancement" explaining what either of these Defendants did, or failed to do, which resulted in a violation of his constitutional rights. See Iqbal, 556 U.S. at 678. "Because vicarious liability is inapplicable to... § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Id. at 676; see also Jones v. Community ...

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