Opinion
1:22-cv-01412-ADA-EPG (PC)
03-31-2023
MICHAEL MANJEET SINGH, Plaintiff, v. WARDEN PHEIFFER, et al., Defendants.
SCREENING ORDER ORDER FOR PLAINTIFF TO: (1) FILE A FIRST AMENDED COMPLAINT; or (2) NOTIFY THE COURT THAT HE WANTS TO PROCEED ONLY ON HIS CLAIMS AGAINST DEFENDANTS VEITH, FOWLER, AND DIAZ (3) NOTIFY THE COURT THAT HE WANTS TO STAND ON HIS COMPLAINT (ECF No. 9). THIRTY (30) DAY DEADLINE
Michael Manjeet Singh (“Plaintiff') is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on May 27, 2022. (ECF No. 9). Plaintiff's complaint alleges various constitutional and state law claims against correctional officers A. Diaz, Veith, and Fowler, Warden Pfeiffer, as well as several unidentified prison supervisory staff. Plaintiff's claims arise from an incident between Plaintiff and Defendants Diaz, Veith, and Fowler during which Plaintiff alleges excessive force was used, leading Plaintiff to suffer multiple rib fractures. Plaintiff also alleges that he was denied medical attention until the next day.
On November 2, 2022, Plaintiff's case was transferred to this Court from the Northern District of California. (ECF No. 19). The Court notes that Plaintiff filed a duplicate copy of his original complaint on August 4, 2022, which was docketed as “Amended Complaint.” (ECF No. 15).
Plaintiff's complaint form identifies this defendant as “Pheiffer.” However, the Court believes that Plaintiff is referring to Christian Pfeiffer, the warden of Kern Valley State Prison, and will use this spelling throughout.
The Court finds that Plaintiff's complaint states cognizable claims against Defendants Veith, Fowler, and Diaz. The Court finds that Plaintiff fails to state cognizable claims against the remaining Defendants named in Plaintiff's complaint.
Plaintiff now has options as to how to move forward. Plaintiff may file an amended complaint if he believes that additional facts would state cognizable claim(s) against those individuals and/or others. If Plaintiff files an amended complaint, the Court will screen that amended complaint in due course. Alternatively, Plaintiff may file a statement with the Court saying that he wants to go forward only on his Eighth Amendment claims for excessive force against Defendants Veith and Fowler, Eight Amendment claims for failure to protect and deliberate indifference to a serious medical need against Defendants Veith, Fowler, and Diaz, and state law claims for negligent failure to protect and failure to summon medical care against Defendants Veith, Fowler, and Diaz. If Plaintiff files a statement that he wants to go forward only on these claims, the Court will authorize service of process on Defendants Veith, Fowler, and Diaz and the case will proceed on these claims. Finally, Plaintiff may also file a statement with the Court that he wants to stand on this complaint, and have it reviewed by the district judge, in which case the Court will issue findings and recommendations to the district judge consistent with this order.
I. SCREENING REQUIREMENT
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 o monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A complaint is required to 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)). A plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.
Pleading of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).
II. SUMMARY OF PLAINTIFF'S COMPLAINT
A. Factual Allegations
Plaintiff's constitutional and state law claims are based on the following factual allegations:
On June 8, 2021, Plaintiff arrived at Kern Valley State Prison (KSVP). Plaintiff was housed in the Administration Segregation Unit (ASU). A sergeant granted Plaintiff the following accommodation: tray to be brought into cell at Plaintiff's bed. (ECF No. 9, p. 4)
On June 9, 2021, Plaintiff was denied morning meal, but a correctional officer tossed a box lunch at Plaintiff. The correctional officer told Plaintiff, “I am not bringing your tray to your bunk.” (Id.)
Later that same day, Plaintiff was escorted in his wheelchair to the clinic for insulin. Plaintiff's wheelchair was brought to his cell door. Plaintiff hopped on one foot from the bunk to the cell door in order to be cuffed up by two correctional officers, Defendants Veith and Diaz. However, the medical clinic computer was not functioning. Plaintiff was escorted back to his cell. Once at the cell door, Plaintiff asked if his wheelchair could go inside the cell. Plaintiff explained that the third watch sergeant from the night before had granted Plaintiff a reasonable accommodation due to his severe mobility issues. However, Defendants Veith, Diaz, and Fowler (another correctional officer) placed Plaintiff in his cell without his wheelchair. Defendant Fowler opened the cell door. Plaintiff stood up with assistance and hopped into the cell. The cell door was then closed, and the food port opened. Plaintiff asked Defendant Diaz, “Can you go get the Sergeant for me? I need assistance.” Defendant Diaz then replied, ‘What? You refuse to give up the handcuffs?” (Id.)
While Plaintiff was placed back in his cell and talking to Defendant Diaz, there was a lot of background noise. Plaintiff was wearing his hearing aids. He replied back to Defendant Diaz, “I did not say that!” Defendant Veith immediately started yelling, “This isn't SATF motherfucker! Open 105 now!” (Id.)
Immediately upon entering Plaintiff's cell, “Defendants Veith, A Diaz, and Fowler viciously slammed Plaintiff to the concrete floor of the cell.” Once Plaintiff was on the ground, “[Defendant] Diaz held Plaintiff down while Veith dropped kicks into Plaintiff's ribs.” At one point, Defendant Veith jumped into the air and landed with full force on Plaintiff. During the attack, Defendant Fowler repeatedly struck Plaintiff in the face. Defendant Fowler also grabbed Plaintiff's head and banged it on the concrete floor multiple times. (Id. at 5).
Plaintiff wears an ADA vest that identifies inmates with disabilities. The back of Plaintiff's vest states that Plaintiff is mobility impaired and hearing impaired. The vests are prescribed by a physician. While Defendants continued to attack Plaintiff, Plaintiff began to gag, choke, and cough while the Defendants yelled, “These ADA vests don't mean shit here! You fuckin' rag head!” Inmate Johnson, in the cell next door to Plaintiff (cell 106), said, “Leave him alone!” (Id. at 5).
Defendants beat Plaintiff for “sometime.” Finally, Officer Diaz removed Plaintiff's chains. Defendants left Plaintiff on the cell floor. An alarm was not activated. (Id.)
A psychiatric technician identified as Dillard “had turned onto the tier, right as [Plaintiff] was returning from [the] insulin attempt, that was approximately 10-12 cells down the tier.” Some time after the assault on Plaintiff, Dillard appeared at Plaintiff's cell door for CCMS Psych Rounds. Plaintiff told Dillard, “Staff just beat me up really bad. I need help.” Seconds later, Plaintiff fell unconscious and appeared non-responsive. (Id. at 5).
Some time later, Plaintiff was suddenly and violently awakened by the presence of Defendants Veith, Fowler, and Diaz. Defendants picked Plaintiff up, threw him in his wheelchair, and wheeled him to the insulin nurse again. Once Plaintiff was in front of the nurse, Plaintiff immediately said, “Staff just beat me up real bad! I can't breathe! I'm in severe pain! I need medical attention bad! I'm man down!” (Id.)
The medical code was activated. After the code was activated, all of the prison guards came to the medical area. A lieutenant and two sergeants came out of their offices. Plaintiff tried to call out for them. However, Defendant Veith gripped Plaintiff with both hands and said, “Turn your head back around. Can't you see they don't want to talk to you? You see they aren't acknowledging you!” The lieutenant and both sergeants clearly heard Plaintiff, but deliberately ignored Plaintiff. Defendant Veith forced Plaintiff's head back around so that Plaintiff could only look straight. This made Plaintiff's pain worse. (Id. at 5).
These individuals are identified as defendants but not named in the complaint.
In response to the medical code, an Emergency Response Vehicle (ERV) was dispatched to ASU/SHU-1. Defendant Veith wheeled Plaintiff to a door leading outside. Defendants Diaz and Fowler were alongside. The three Defendants wheeled Plaintiff outside and waited for the ERV's arrival. Plaintiff requested that a video be made. (Id. at 6).
The ERV arrived, and the vehicle door was opened. Defendant Veith told the nurse, “Don't pull the gurney out!” Defendant Veith then told Plaintiff, “Go ahead, get up in there!” Plaintiff told Defendant Veith, “I can't walk!” Defendant Veith stated, “You are not DPW. You are DPO. If you don't hop up in the van (ERV), then you are refusing medical attention.” (Id. at 6). Defendants Veith, Fowler, and Diaz did not allow medical staff to take Plaintiff's vitals, administer first aid, oxygen, or treatment. (Id. at 10).
Plaintiff was denied any care. After Plaintiff was denied medical attention, Defendant Veith loudly stated, “Whew! Crisis averted!” Defendant Fowler replied, “Yeah, I know.” Defendant Diaz stood silent with the other guards. Plaintiff told Defendant Veith, “Sergeant Lepe put a chrono in my file regarding the wheelchair in my cell.” Defendant Veith called Plaintiff a liar. (Id. at 6).
On the way back to Plaintiff's cell, Defendant Veith told Plaintiff, “For the rest of your time here, I better not hear a peep out of you. If you make any peep, I'll take all your DMEs (durable medical equipment). I'm married to a doctor! Your wheelchair will be pulled. I'll have you crawling on the floor around here. Do you hear me?” (Id.)
Plaintiff was wheeled into his cell. Plaintiff's red paper jumpsuit was ripped up and patches were missing. Defendants Veith, Diaz, and Fowler entered Plaintiff's cell. Defendants unlocked the lock and forcefully pulled out the chain. Plaintiff did not resist. Plaintiff was left sitting in his wheelchair. (Id.)
A couple of hours later, the captain came to Plaintiff's cell door to conduct the ASU Administrative Review (Lockup Order-CDCR 119). At the time, Plaintiff's vision was still blurry so Plaintiff could not read the captain's name tag. The captain's name was either “Yardley” or “Haddley.” Plaintiff told the captain about the use of force incident. The captain condescendingly dismissed Plaintiff. While Plaintiff spoke to the captain, Defendant Veith showed up. Plaintiff told the captain that Defendant Veith was one of the staff that perpetrated the battery on Plaintiff. The captain laughed, pointed at Defendant Veith, and said, “Oh, this one here?” Defendant Veith smiled and laughed. The captain told Plaintiff that she would get him a 602. The captain did not ask Plaintiff if he was okay, or if he needed medical attention. The captain did not provide Plaintiff a 602. (Id. at 7).
This individual is also identified as a defendant.
All day and into the evening, Plaintiff complained to staff that he was having a hard time breathing. Plaintiff experienced severe pain in his side and head, dizziness, and blurry vision. Plaintiff filed an 1824 grievance that night when he received his evening insulin. Plaintiff placed the 1824 in the appeals box. However, Plaintiff fears the grievance was intercepted by Defendant Veith. (Id. at 8).
On June 10, 2021, Dr. J. Wang immediately called a medical emergency code and ordered that Plaintiff be taken to the hospital. Dr. Wang also ordered a wheelchair lift for access to the transport vehicle. An x-ray taken that day revealed that Plaintiff's ribs were too “severely bruised” to show any breaks. However, subsequent x-rays of Plaintiff's ribs that were taken on June 24, 2021, demonstrated multiple rib fractures and rib displacement. (Id.)
On June 11, 2021, Plaintiff was pulled out of his cell by Jose Aceves, an internal affairs officer, for an interview regarding issues at SATF. Officer Aceves told Plaintiff that he would inform Warden Pfeiffer, the KSVP warden, regarding the June 9, 2021, incident. (Id.)
Attached to Plaintiff's complaint are five exhibits:
Exhibit A is a medical record dated June 24, 2021, of Plaintiff's X-ray results. (Id. at 12). The impression noted is “[m]idly displaced left ninth rib fracture. Questionable nondisplaced left eighth rib fracture.” (Id.)
Exhibit B is a medical chrono signed by Dr. J. Wang and dated June 10, 2021. (Id. at 13). The chrono notes “1845/7410 revision-DPW; use of CPAP machine; needs wheelchair lift for access to transport vehicle.” (Id.)
Exhibit C is a memorandum prepared by internal affairs Lieutenant Jose Aceves regarding his interview with Plaintiff on June 11, 2021. (Id. at 15-16).
Exhibit D is an informational chrono prepared by Sergeant S. Lepe at SATF on May 25, 2021, regarding Plaintiff's reasonable accommodation request (CDCR form 1824) to be moved to a DPW cell as he awaits evaluation for DPW designation. (Id. at 17). The informational chrono indicates Plaintiff made this request because Plaintiff “knows cells at other institutions are smaller and will not accommodate his wheelchair under his DPO status.” (Id.)
Exhibit E is an ADA/Effective Communication Patient Summary last updated July 15, 2021, which notes Plaintiff's current DPP codes as DPW and DNH. (Id. at 18).
B. Plaintiff's Claims
Plaintiff's complaint asserts constitutional claims against Defendants Veith and Fowler for excessive force in violation of the Eighth Amendment. (Id. at 9). Plaintiffs complaint also asserts claims against Defendants Veith, Fowler, and Diaz for failure to protect in violation of the Eighth Amendment. (Id. at 9). Plaintiffs complaint also asserts claims for unsafe conditions in violation of the Eighth Amendment against Defendants Veith, Fowler, Diaz, and the lieutenant and sergeants who exited their offices during the medical code on June 9, 2021. (Id. at 10). Additionally, Plaintiff's complaint asserts claims for deliberate indifference to serious medical needs against Defendants Veith, Fowler, Diaz, Warden Pfeiffer, the captain that came to Plaintiff's cell following the incident, and the lieutenant and sergeants. (Id.)
Plaintiff's complaint appears to only allege excessive force claims against Defendants Fowler and Veith. (ECF No. 9, p. 9). Based on Plaintiff's complaint, the Court will evaluate Plaintiff's excessive force claim with respect to those defendants only.
Plaintiff's complaint also asserts state law claims against Defendants Veith, Fowler and Diaz for negligent failure to protect and the misuse of state property to create a dangerous condition, (id. at 9-10), as well as a medical negligence claim against all defendants (id. at 10).
Plaintiff's complaint states that “[e]ach Defendant is sued in his individual capacity for monetary damages, and in his official capacity for declaratory relief.” Plaintiff also seeks supplemental jurisdiction of his state law claims. (Id. at 3).
Plaintiff alleges exhaustion of all available administrative remedies before filing the complaint. Plaintiff states that that “[a]s for the state law claims, Plaintiff filed a claim concerning these occurrences with the State Board of Control within six months of those occurrences (Government Claims Form No. 2100.8396). Plaintiff will bring suit within six months of Boards failure to settle Plaintiff's claims as required by state law. Claim is still pending.” (Id. at 4).
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
A. Section 1983
The Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.'” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict' constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard ‘foreseeability' formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
A plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695 (1978).
B. Excessive Use of Force
“In its prohibition of ‘cruel and unusual punishments,' the Eighth Amendment places restraints on prison officials, who may not ... use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). When determining whether the force was excessive, the Court looks to the “extent of injury suffered by an inmate., the need for application of force, the relationship between that need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,' and ‘any efforts made to temper the severity of a forceful response.'” Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9.
Here, Plaintiff alleges that Defendants Veith and Fowler used excessive force against Plaintiff in violation of the Eighth Amendment by attacking Plaintiff when he did not comply with the order to remove his chains. (ECF No. 9, p. 5, 9). Plaintiff further alleges that Defendants Veith and Fowler used excessive force by kicking Plaintiff in the ribs and striking Plaintiff's head while Plaintiff was on the ground. (Id. at 5). Based on these allegations, the Court finds that Plaintiff sufficiently alleges that Defendants Veith and Fowler used force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. Accordingly, the Court finds that Plaintiff's Eighth Amendment excessive force claims against Officers Veith and Fowler should proceed past screening.
While Plaintiff's factual allegations indicate that Defendant Diaz also participated in the attack (ECF No. 9, p. 5), Plaintiff's complaint only names Defendants Veith and Fowler in the excessive force claims (id. at 9). As previously discussed, (see supra, p. 7 n.4), the Court will only evaluate Plaintiff's excessive force claim with respect to Defendants Veith and Fowler.
C. Failure to Protect
Under the Eighth Amendment, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. at 833. To establish a failure to protect claim, a prisoner must establish that prison officials were deliberately indifferent to a sufficiently serious threat to the prisoner's safety. Id. at 837. “‘Deliberate indifference' has both subjective and objective components.” Labatadv. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). A prisoner must show that “the official [knew] of and disregarded] an excessive risk to inmate ... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 837. “Liability may follow only if a prison official ‘knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.'” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847).
Here, Plaintiff's complaint alleges that Defendants Veith, Fowler, and Diaz each failed in i n their duty to intervene and stop Defendants Veith and Fowler from using excessive force against Plaintiff. (ECF No. 9, p. 9). Plaintiff further alleges that Defendants Veith, Fowler, and Diaz were aware of the substantial risk of harm to Plaintiff created by Defendants Veith and Fowler during the incident. (Id.) These allegations are sufficient for purposes of screening, to state a claim for failure to protect in violation of the Eighth Amendment against Defendants Veith, Fowler, and Diaz. Accordingly, the Court finds that Plaintiff's Eighth Amendment failure to protect claims against Defendants Veith, Fowler, and Diaz should proceed past screening.
D. Deliberate Medical Indifference to Serious Medical Needs in Violation of the Eighth Amendment
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.'” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff to show (1) “a ‘serious medical need' by demonstrating that ‘failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'” and (2) that “the defendant's response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) (citation and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
Deliberate indifference is established only where the defendant subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known”) is insufficient to establish an Eighth Amendment violation. Farmer, 511 U.S. at 836-37 & n.5 (citations omitted).
Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay led to further harm. See McGuckin, 974 F.2d at 1060. In this regard, “[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096.
A difference of opinion between an inmate and prison medical personnel-or between medical professionals-regarding appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To establish a difference of opinion rising to the level of deliberate indifference, a “plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
1. Defendants Veith, Fowler, and Diaz
Here, Plaintiff alleges that Defendants Veith, Fowler, and Diaz failed to summon medical care after Defendants Veith and Fowler repeatedly kicked Plaintiff in the ribs and hit Plaintiff's head. (ECF No. 9, p. 5). Plaintiff alleges that he was gagging and coughing during the attack, but Defendants left Plaintiff on the floor without summoning help. (Id.) Plaintiff also alleges that Defendants Veith, Fowler, and Diaz later denied Plaintiff medical care after a medical code was activated by refusing to help Plaintiff into the emergency vehicle. (Id. at 6). These allegations sufficiently allege that Plaintiff's medical needs after the incident were serious such that a failure to treat Plaintiff's condition could result in further injury or unnecessary pain. Moreover, Plaintiff sufficiently alleges facts that Defendants Veith, Fowler, and Diaz were aware of the excessive risk to Plaintiff's health and safety and yet denied or delayed medical treatment to Plaintiff. Accordingly, the Court finds that Plaintiff's Eighth Amendment medical deliberate indifference claims against Defendants Veith, Fowler, and Diaz should proceed past screening.
2. Doe Defendants and Warden Pfeiffer
Plaintiff also alleges that the lieutenant and sergeants who stepped out into the hallway were deliberately indifferent to Plaintiff's medical needs because they failed to respond to Plaintiff as Defendants Veith, Fowler, and Diaz wheeled Plaintiff to the emergency vehicle. (Id. at 5). These allegations are insufficient to state a claim for deliberate indifference to a serious medical need. Plaintiff's allegation that the lieutenant and sergeants were present when Plaintiff was denied medical attention is vague and conclusory. (Id. at 7) (“Lt. & Sgts. were present when my abusers denied me care.”). Based on Plaintiff's complaint, these individuals were aware that Plaintiff was on his way to receive medical treatment. Plaintiff does not allege any specific facts that indicate the lieutenant or sergeants denied or delayed Plaintiff medical care.
Plaintiff's allegations regarding the captain who visited Plaintiff's cell on the day of the incident are similarly conclusory. Plaintiff's complaint merely alleges that the captain failed to ask for if Plaintiff was “ok or if [Plaintiff] needed medical attention.” (Id. at 7). While Plaintiff states that he communicated his need to see a doctor to each defendant, Plaintiff fails to allege that he exhibited any observable medical symptoms that the captain was aware of during the visit.
As for the Warden, Plaintiff fails to allege any facts that connect Warden Pfeiffer in any way to the denial or delay in medical care.
Accordingly, the Court finds that Plaintiff's complaint fails to state Eighth Amendment claims for deliberate indifference to a serious medical need against the lieutenant, sergeants, captain and Warden.
E. Conditions of Confinement
“It is undisputed that the treatment a prisoner receives in prison and the conditions under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981).
Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. (citation and internal quotation marks omitted). Second, “a prison official must have a sufficiently culpable state of mind,” which for conditions of confinement claims “is one of deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials act with deliberate indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are critical in determining whether the conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the part of a prison official is not sufficient to establish liability, but rather, the official's conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Plaintiff's complaint seeks to bring a separate Eighth Amendment claim against various defendants for “dangerous living conditions” based on the fact that Plaintiff was “made to spend all night without any medical care.” (ECF No. 9, p. 10). To the extent Plaintiff's complaint alleges Eighth Amendment conditions of confinement claims based on a denial or delay in medical attention, the Court has addressed Plaintiff's allegations in the above section. Plaintiff's complaint does not otherwise state a claim for unconstitutional conditions of confinement.
The Court notes that Plaintiff's complaint contains factual allegations regarding violations of the Americans with Disabilities Act. Specifically, Plaintiff generally alleges that he was denied reasonable accommodations. However, Plaintiff's complaint does not bring a claim under the ADA. If Plaintiff wishes to assert a claim under the Americas with Disabilities Act, he may file an amended complaint adding such a claim.
E. State Law Claims
Because Plaintiff alleges claims arising under federal law, the Court could exercise supplemental jurisdiction over Plaintiff's state law claims. 28 U.S.C. § 1367(a). Thus, the Court will also screen the state law claims alleged in Plaintiff's complaint.
1. Negligent Failure to Protect
“In order to establish liability on a negligence theory, a plaintiff must prove duty, breach causation, and damages.” Conroy v. Regents of the Univ. of Cal., 45 Cal.4th 1244, 1250 (2009). California imposes a common law duty on prison guards to protect prisoners from foreseeable harm. Cotta v. County of Kings, 686 Fed.Appx. 467, 469 (9th Cir. 2017); Lawson v. Superior Ct., 180 Cal.App.4th 1372, 1389-90 (2010); Giraldo v. California Dep't of Corr. & Rehab., 168 Cal.App.4th 231, 246-51 (2008).
Here, Plaintiff alleges compliance with the Government Claims Act. (ECF No. 9, p. 4).Plaintiff alleges that Defendants Veith, Fowler, and Diaz had a duty under state law to exercise reasonable care to protect Plaintiff from unnecessary force. (ECF No. 9, p. 9) (citing Cal. Code Reg., Title 15 §§ 3268(a)(2); 3268(b); 3268.1(c)). Plaintiff further alleges that Defendants Veith, Fowler, and Diaz breached that duty by failing to stop each other from using excessive force against Plaintiff, and as a result, Plaintiff was injured. Accordingly, Plaintiff's negligent failure to protect claims brought under state law against Defendants Veith, Fowler, and Diaz should proceed past screening.
Plaintiff alleges that he filed a claim within six months of the incident, which took place in June 2021, but that the claim is still “pending.” However, California Government Code § 945.4 provides that “no suit for money or damages may be brought against a public entity . . .until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board[.]” The Board has forty-five days to act on a claim, or an application for leave to file a late claim; and absent an extension by agreement, if the board fails to act within forty-five days, the claim is deemed rejected, or the application is deemed denied, on the last day of the prescribed period. Cal. Gov't Code §§ 911.6, 912.4.
2. California Government Code §§ 845.6 & 844.6
“In order to state a claim under § 845.6, a prisoner must establish three elements: (1) the public employee knew or had reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon such care.” Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006). “Liability under section 845.6 is limited to serious and obvious medical conditions requiring immediate care.” Id. (quoting Watson v. State, 26 Cal.Rptr.2d 262, 265 (Ct.App. 1993)) (internal quotation marks omitted).
Here, Plaintiff alleges that Defendants Veith, Fowler, and Diaz failed to summon medical care in violation of California Government Code §§ 845.6 and 844.6 . (ECF No. 9, p. 5). Plaintiff alleges that he was gagging and coughing during the attack, but Defendants left Plaintiff on the floor. (Id.) These allegations sufficiently allege that Defendants Veith, Fowler, and Diaz had reason to know of Plaintiff's need for medical care, and yet failed to summon such care. Accordingly, the Court finds that Plaintiff's state law claims brought under California Government Code § 845.6 against Defendants Veith, Fowler, and Diaz should proceed past screening.
California Government Code § 844.6 provides that a public entity is not liable for injuries to prisoners or caused by prisoners but does not “exonerate a public employee from liability for injury proximately caused by his negligent or wrongful act or omission.” Cal. Gov't Code § 844.6.
Plaintiff also alleges that Warden Pfeiffer, lieutenant, sergeants, and captain are also liable under California Government Code § 845.6. As discussed above, while Plaintiff's complaint makes conclusory statements that these defendants knew that Plaintiff needed to see a doctor, Plaintiff does not allege specific facts that these defendants were aware that Plaintiff had a serious and obvious medical condition that required immediate care. Thus, Plaintiff's complaint fails to state a claim under California Government Code § 845.6 against the Warden, lieutenant, sergeants, and captain.
3. Use of State Property to Create Dangerous Condition and Injury
“To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.” Brenner v. City of El Cajon, 113 Cal.App.4th 434, 439 (2003). To hold an employee of a public entity liable for injury caused by a dangerous condition, a plaintiff must also establish that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.Cal. Gov't Code § 840.2 (a)-(b).
California Government Code section 830 defines dangerous condition as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Cal. Gov't Code § 830(a). A public entity may “protect against” such a condition by “repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.” Cal. Gov't Code § 830(b).
Plaintiff's complaint also alleges claims against Defendants Veith, Fowler, and Diaz based on California Government Code § 835. However, Plaintiff's complaint fails to allege any facts that indicate the existence of a dangerous condition of public property for which defendants may be held liable. Thus, Plaintiff's complaint fails to state a claim for premises liability against Defendants Veith, Fowler, and Diaz under state law.
IV. CONCLUSION AND ORDER
The Court has screened Plaintiff's first amended complaint and finds that the following claims should proceed past screening: Plaintiff's claims against Defendants Veith and Fowler for excessive force in violation of the Eighth Amendment; Plaintiff's claims against Defendants Veith, Fowler, and Diaz for deliberate indifference to a serious medical in violation of the Eighth Amendment; Plaintiff's state law claims against Defendants Veith, Fowler, and Diaz for negligent failure to protect and failure to summon medical care.
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with time to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended complaint within thirty days.
Plaintiff may also choose to proceed only with the claims found cognizable in this order, in which case the Court will authorize service of process on Defendants Veith, Fowler, and Diaz, and the case will proceed on these claims.
Alternatively, Plaintiff may choose to stand on this complaint, in which case the Court will issue findings and recommendations to a district judge consistent with this order.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Within thirty (30) days from the date of service of this order, Plaintiff shall either:
a. File a First Amended Complaint; or
b. Notify the Court that he wants to proceed only on claims against Defendants
Veith, Fowler, Diaz identified in this order; or
c. Notify the Court in writing that he wants to stand on his complaint.
2. Should Plaintiff choose to amend his complaint, Plaintiff shall caption the amended complaint “First Amended Complaint” and refer to the case number 1:22-cv-01412-ADA-EPG; and
3. Failure to comply with this order may result in the dismissal of this action.
IT IS SO ORDERED.