United States District Court, E.D. California
THIRD SCREENING ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 AND DIRECTING CLERK'S OFFICE TO ENTER JUDGMENT
ANTHONY W. ISHII, District Judge.
Screening and Dismissal Order
I. Procedural History
On May 10, 2011, Plaintiff Michael Eugene Hollis ("Plaintiff"), a federal prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971); and the Federal Tort Claims Act. Plaintiff's original complaint was dismissed for failure to state a claim, and his first amended complaint was dismissed for failure to comply with the first screening order and failure to comply with Federal Rule of Civil Procedure 8(a).
On August 4, 2014, Plaintiff filed a second amended complaint in compliance with the Court's screening order of March 26, 2014. Plaintiff's second amended complaint sets forth claims against the County of Fresno and county employees under section 1983, arising out of unconstitutional conditions of jail confinement in 2008 and 2009.
II. Screening Requirement and Standard
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences, " Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of 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). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
When Plaintiff initially filed this suit, his claims arose from the alleged failure of jail staff to provide him with an effective over-the-counter laxative for his severe constipation. Plaintiff also alleged, very generally, retaliation against him. Plaintiff's complaint was twenty-six pages in total length, fifteen of which formed the complaint and the remainder of which were exhibits.
While the Court found that Plaintiff's allegations were sufficient to show the existence of a serious medical need necessitating care,  see Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010) (Eighth Amendment standard requiring inmates show (1) subjective deliberate indifference to (2) an objectively serious medical need applies to pretrial detainees), Plaintiff's complaint was dismissed, with leave to amend, because he failed to allege facts showing the requisite causal connection between constitutional violation alleged and the named defendants, e.g., Iqbal, 556 U.S. at 676-77; Lemire v. California Dep't of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013). Plaintiff also failed to allege any facts supporting the existence of a viable retaliation claim. In dismissing Plaintiff's complaint with leave to amend to cure the deficiencies, Plaintiff was cautioned against adding new, unrelated claims in his amended complaint. Fed.R.Civ.P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Despite this admonition, Plaintiff's amended complaint morphed from events confined to lack of adequate medical treatment for constipation to a one-hundred forty-seven page morass of new claims and parties, seventy pages of which comprised the complaint alone. Plaintiff's amended complaint was dismissed for failure to comply with the terms of the first screening order and with Rule 8. Plaintiff was again admonished regarding the pursuit of unrelated claims in a single action. Furthermore, the Court noted Plaintiff was attempting, in bad faith, to re-litigate claims he knew had been dismissed, with prejudice, and were therefore barred by the doctrine of res judicata. Plaintiff was also warned as follows:
It has not escaped the Court's attention that some of the claims added in the amended complaint were raised and abandoned by Plaintiff in a separate civil action. Hollis v. Shumate, 1:11-cv-00747-AWI-GBC (PC). The pendency of this action does not serve as a proverbial kitchen sink where Plaintiff may deposit all of his various claims arising out of his confinement at the Fresno County Jail. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "mishmash" complaints).
(Doc. 14, p. 2 n.2.)
Despite repeated admonitions, the Court is again faced with a "kitchen sink" complaint. Although Plaintiff's second amended complaint is more manageable in length, Plaintiff is still attempting to broaden this lawsuit well beyond that which was contemplated in the original complaint or tolerated by the Federal Rules of Civil Procedure, and in violation of the Court's screening orders. Due to the circuitous nature of Plaintiff's second amended complaint, including obfuscation of relevant facts with tangential matters and attempts to relate unrelated claims under an umbrella of supervisory and/or municipal liability, the Court sets forth the following detailed summary of Plaintiff's factual allegations.
B. Summary of Allegations
Plaintiff was incarcerated at the Fresno County Jail from August 18, 2008, to June 16, 2009, and he alleges staff at the jail retaliated against him for exercising his right to petition the government for redress, in violation of the First Amendment; deprived him of a protected liberty interest without due process of law in violation of the Fifth Amendment; and subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Plaintiff names the following defendants: County of Fresno; Department of Public Health Director Edward Moreno, M.D.; Correctional Health Division Manager George Laird. M.D.; Correctional Health Medical Director Pratap Narayen, M.D.; Than Aw, M.D.; Captains Rick Hill and Marilyn Weldon; a John Doe Sergeant; and four John Doe Deputies.
1. Placement in Medically Inappropriate Housing
Plaintiff, who weighed almost three-hundred pounds at the time of his arrest and was "heavy, " describes his physical condition at the time he entered the Fresno County Jail as follows:
Plaintiff is a disabled American. Plaintiff's disability is based upon his seven orthopaedic surgeries and reconstructions in his right knee, his right hand, and his left forearm. Plaintiff has been a disabled American since 1993. Plaintiff suffers from severe post-surgical osteoarthritis in his right hand and his right knee. Plaintiff has two fingers missing and severe crush injury trauma in his right hand. The right knee has steel and screws in it and the knee joint is bone-on-bone with no cartilidge [sic]. The left forearm was fused with bone from Plaintiff's left hip and it's subject to spiral fractures when stressed. The Plaintiff is not fit for fighting or defending himself from attack given his disability, his white ethnicity, and of course, sex offender charges.
(Doc. 17, 2nd Amend.Comp., court record pp. 8, 9.)
On August 19, 2008, during the intake procedure following Plaintiff's arrest, Plaintiff informed jail staff of his medical condition. ( Id., pp. 8, 34, 35.) However, a female deputy assigned Plaintiff to the North Jail, 5th Floor, C-pod, a housing unit which required Plaintiff to use a flight of approximately twenty-five stairs to use the restroom. ( Id., pp. 5, 8, 36, 38.) Plaintiff alleges that as a result of having to climb stairs, he was in pain and his right knee swelled. ( Id., p. 36.) Additionally, Plaintiff alleges that he was not provided with pain medication, and he was improperly assigned to a housing unit with stairs in retaliation against him for previously complaining to the shift sergeant about not receiving lunch. ( Id. )
Plaintiff filed a grievance regarding his housing assignment on August 20, 2008, and it was granted on September 1, 2008, with a notation that Plaintiff would be housed in a lock-down cell in the main jail. ( Id. ) Plaintiff was transferred to a medically-appropriate cell in the main jail with a toilet and shower that did not require him to use stairs. ( Id., p. 11.) However, approximately twenty-four hours later, Plaintiff was "thrown back" into the North Jail, 5th Floor, C-pod, by four Doe custody employees at the direction of their Doe sergeant, despite his visibly swollen knee; and Plaintiff remained there until September 12, 2008. ( Id., pp. 5, 11.)
Although Plaintiff alleges that an unknown staff member noted on September 1 or 2, 2008, there was nothing wrong with Plaintiff, the medical note relied on by Plaintiff documented his request for a pod where he did not have to climb stairs to use the bathroom, his past knee surgery in 1995, a swollen right knee, and complaints of grinding when ambulating. ( Id., pp. 11, 38.) On September 2, 2008, another note documented that Plaintiff could go to general population with a lower bunk on a lower tier. ( Id., p. 38.)
Plaintiff "speculates" that the defendants hated him because of the sex offense for which he was arrested, and he asserts that "he is a member of at least one protected class: Disabled American, a grievance writer/inmate litigator seeking free speech, and/or a sex offender who suffered atypical hardship because of who is he." ( Id., p. 12.) Plaintiff concludes that he was subjected to "hate crimes." ( Id. )
Plaintiff alleges that "Defendant Weldon is responsible for maintaining FCJs [sic] contract with the USMS and the deficiencies set out herein implicates [sic] her office and... her sphere of responsibility;" and that Defendant Hill "is responsible for custody operations, classification, grievances, etc., and the deficiencies cited herein implicate his office and his sphere of responsibility." ( Id., p. 9.)
Plaintiff submitted several sick call request slips and was seen by a medical staff member, who "lied" and told Plaintiff he would be receiving a muscle rub for his knee to enable him to climb stairs. ( Id., p. 12.) Plaintiff never received the muscle rub, however. ( Id. )
On September 7, 2008, Plaintiff mailed a grievance to Defendant Hill. ( Id., p. 13.) By that time, his knee was swollen and hot, and he was unable to get in and out of the three-man bunk without enduring stabbing pain. ( Id. ) Even with his pain medication, Plaintiff's pain level was barely tolerable. ( Id. )
On September 12, 2008, Sergeant Shumate called Plaintiff to his office, and, visibly upset, said, "So you're the one who sent the grievance to the Captain (Hill). We're going to lock you down for medical reasons. We may put someone in your cell from time to time." ( Id. ) While Sergeant Shumate told Plaintiff that medical lock-down was the only option he had to accommodate Plaintiff's medical needs, Plaintiff alleges that he could have gone to "open pod AD-SEG" or medical, and out of the three options, an "irate" Sergeant Shumate was sending him to the worst one: "24/7 punitive medical lockdown." ( Id. )
2. Assignment of Mentally Unstable Inmate to Cell
On February 2, 2009, Deputy Oliver placed a paranoid, schizophrenic inmate with bipolar disorder in Plaintiff's medical lock-down cell at approximately 4:30 a.m. ( Id., pp. 14, 41.) Plaintiff alleges that the inmate had a history of officer assault and rage-induced attacks, causing Plaintiff to fear for his safety, particularly in light of his physical impairments. ( Id. )
Plaintiff filed a grievance that day and the grievance was deemed moot by staff in light of a call from the United States Attorney's Office notifying jail classification staff that Plaintiff feared for his safety. ( Id., pp. 14, 41, 42.) Plaintiff alleges that "the defendants deny improper motive for [placing] the Plaintiff with the insane man but they did not provide any alternative explanation." ( Id., pp. 14, 42.) Plaintiff alleges that the County of Fresno's jail improperly denies mentally ill inmates medication and then uses excessive force against them when they act out. ( Id., p. 14.)
Plaintiff alleges that he tried to file another grievance but he was denied access to a grievance form by a staff member Plaintiff was suing in a different case. ( Id., pp. 14, 43.)
Plaintiff alleges that the mentally ill inmate was well known to Defendant Hill's classification staff, and the inmate told Plaintiff it took four officers to get him into a "super lockdown single cell." ( Id., p. 15.) The inmate went to court on February 2, 2009, to be declared mentally unfit to stand trial, and he told Plaintiff about cutting people and stabbing them with pencils. ( Id. ) Plaintiff alleges that jail staff knew the inmate was not getting his medication and was dangerous without medication, and that when Officer Oliver put the inmate in Plaintiff's cell, he told Plaintiff to push the call button if there was any trouble. ( Id. )
Plaintiff alleges that he was housed with the psychotic inmate for ten days, and he was housed for one-hundred sixteen days with dangerous gang members who had started fights elsewhere in the jail. ( Id. ) Plaintiff alleges that he was subjected to one-hundred twenty-six "days of reckless endangerment of the Disabled American Plaintiff in the classification plan' (real jail') the classification department used against Plaintiff to punish him for being a sex offender, grievance write, and complainer;" and that "County of Fresno, her Health Department, Jail Medical Staff, and Jail Classification Staff are all sued for forcing a medical lockdown inmate to co-exist with gang members who had been fighting and with a patient that they know cannot get the right meds because they are expensive." ( Id. )
On August 19, 2009, Plaintiff began to have digestive system problems, and on August 28, 2009, he bought Metamucil from the jail's commissary. ( Id. ) The Metamucil did not work and Plaintiff attempted to buy milk of magnesia on September 4, 2009, which was the next commissary day. ( Id., pp. 15-16.) The commissary did not have the milk of magnesia in stock, and Plaintiff filed a sick call request slip regarding his constipation, which was causing him pain and bleeding. ( Id., p. 16.)
In 2004, Plaintiff had surgery to remove an anal fistula and the old wound was aggravated by his constipation, causing him pain. ( Id. ) Plaintiff alleges that Defendants Laird and Aw were ...