United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. His initial complaint
(ECF No. 1) was dismissed pursuant to 28 U.S.C. § 1915A
(ECF No. 14). After numerous extensions of time to do so (ECF
Nos. 18, 21, 25 & 27), he has filed an amended complaint
(ECF No. 30), which the court must now screen pursuant to
section 1915A. Plaintiff has also filed a motion for a
preliminary injunction (ECF No. 22). As explained below, the
amended complaint must be dismissed with leave to amend and
the motion for a preliminary injunction must be denied.
mandates that district courts 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.
alleges that on or around June 18, 2012, defendants
Brizendine, Haghbin, Peterson, and Crisostomo wrongfully
diagnosed him with schizoaffective disorder, delusional
disorder, antisocial personality disorder, bipolar disorder,
psychotic disorder, and polysubstance dependence. ECF No. 30
at 9, 20. As a result, he was placed in the Enhanced
Outpatient Program (“EOP”) for mentally ill
inmates. Id. Plaintiff's disagreement with the
diagnosis made by his mental health professionals is
insufficient to establish deliberate indifference. See
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)
(“A difference of opinion does not amount to a
deliberate indifference to [the inmate's] medical
needs.”). Moreover, “an incorrect diagnosis is
not deliberate indifference.” Smith v. Asghar,
114 Fed.Appx. 222, 224 (7th Cir. 2004) (citing Steele v.
Choi, 82 F.3d 175, 178 (7th Cir. 1996)).
plaintiff claims that being housed in the EOP with mentally
ill inmates put his life in danger, but fails to specify how
his life was endangered or who was aware of the danger. ECF
No. 30 at 9-10. He claims further that the above-named
defendants, along with defendants Virga, Meier, Cannady, and
Cantrell, kept him in an unsanitary cell
“flooded” with human waste, and that his
placement in the EOP prevented him from challenging his
criminal conviction in court. Id. at 11, 22.
“[S]ubjection of a prisoner to lack of sanitation that
is severe or prolonged can constitute an infliction of pain
within the meaning of the Eighth Amendment.”
Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314 (9th
Cir. 1995). Plaintiff must, however, specify which defendant
confined him to the unsanitary cell, how each defendant
became aware of the unsanitary conditions and what they did
in response, and how long he was so confined. As for any
access to the courts claim, plaintiff must allege how a
particular defendant interfered with his effort to pursue a
non-frivolous claim regarding his conviction. See Lewis
v. Casey, 518 U.S. 343, 354-55 (1996).
addition, plaintiff claims that defendant Virga's
“officers” deprived him of a wheelchair even
though he is mobility impaired and in chronic pain. ECF No.
30 at 20. Plaintiff does not raise any discernable allegation
that Virga had any direct involvement in his medical care.
And “[t]here is no respondeat superior liability under
section 1983.” Taylor v List, 880 F.2d 1040,
1045 (9th Cir. 1989).
also claims that his administrative appeals were denied or
ignored. ECF No. 30 at 10, 16. However, inmates have no
standalone rights with respect to the administrative
grievance process. Ramirez v. Galaza, 334 F.3d 850,
860 (9th Cir. 2003); Williams v. Cate, No.
1:09-cv-00468-0WW-YNP PC, 2009 U.S. Dist. LEXIS 107920, 2009
WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff
has no protected liberty interest in the vindication of his
the complaint names Does 1-20 as defendants. ECF No.
30. at 6. Unknown persons cannot be served with
process until they are identified by their real names and the
court will not investigate the names and identities of
unnamed defendants. If plaintiff later learns the identity of
a “doe” defendant, he may seek to amend his
complaint to add that individual as a defendant. See
Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98
(9th Cir. 2003).
Leave to Amend
these reasons, plaintiff's amended complaint is dismissed
with leave to amend. If plaintiff chooses to file a third
amended complaint it should observe the following:
amended complaint must identify as a defendant only persons
who personally participated in a substantial way in depriving
him of a federal constitutional right. Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person
subjects another to the deprivation of a constitutional right
if he does an act, participates in another's act or omits
to perform an act he is legally required to do that causes
the alleged deprivation). The complaint should also describe,
in sufficient detail, how each defendant personally violated
or participated in the violation of his rights. The court
will not infer the existence of allegations that have not
been explicitly set forth in the amended complaint.
amended complaint must contain a caption including the names
of all defendants. Fed.R.Civ.P. 10(a).
may not change the nature of this suit by alleging new,
unrelated claims. See George v. Smith, 5 ...