Opinion
NO. CV 12-10608-PA(E)
12-26-2012
GREGORY SHEHEE, Plaintiff, v. PAUL TANAKA, et al., Defendants.
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
BACKGROUND
Plaintiff, allegedly a detainee at the Los Angeles County Jail Twin Towers Correctional Facility, brings this civil rights action pursuant to 42 U.S.C. section 1983 against Los Angeles County Sheriff Paul Tanaka [sic], Los Angeles County Supervisor Gloria Molina, and a number of jail officials and other persons. Plaintiff's concurrently filed "Request to Waive Court Fees" identifies Plaintiff's address as the Coalinga State Hospital, but the Complaint shows Plaintiff's address to be the Twin Towers County Correctional Facility.
The Complaint consists of a form Complaint to which is attached a typed and handwritten Complaint containing the charging allegations.The Complaint is virtually identical to a Complaint Plaintiff previously filed in this Court in 2008, in Shehee v. Baca, CV 08-2277-JHN(E). The only three differences appear to be: (1) the caption page in this action is typed, whereas the caption page in the previous action was handwritten; (2) in this action, Plaintiff sues Paul Tanaka as the "Los Angeles County Sheriff," whereas in Shehee v. Baca Plaintiff sued Los Angeles County Sheriff Leroy Baca; and (3) in this action, Plaintiff seeks damages in the sum of $524 million, whereas the Complaint in Shehee v. Baca sought only $124 million.
Unless otherwise indicated, all subsequent references to the "Complaint" refer to the typewritten Complaint attached to the form Complaint.
The Court takes judicial notice of the docket and filed documents in Shehee v. Baca, CV 08-2277-JHN(E). See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records).
PLAINTIFF'S PREVIOUS ACTION IN SHEHEE v. BACA
On May 2, 2008, the Court dismissed the Complaint in Shehee v. Baca with leave to amend. After receiving several extensions of time, Plaintiff filed a First Amended Complaint on August 22, 2008, accompanied by thirty filed "appendices" in a stack over a foot high and containing hundreds of inmate requests and grievances submitted by Plaintiff, various medical records, at least a hundred letters to Plaintiff from the American Civil Liberties Union, and many other unnumbered documents of uncertain significance. On September 5, 2008, the Court dismissed the First Amended Complaint with leave to amend.
Despite several extensions of time, Plaintiff did not file a timely Second Amended Complaint. Therefore, on March 5, 2009, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action without prejudice for failure to prosecute. However, On March 26, 2008, the Magistrate Judge withdrew the Report and Recommendation after receiving another request for an extension of time from Plaintiff, and granted Plaintiff another extension of time to file a Second Amended Complaint.
Plaintiff filed a notice of appeal on April 28, 2009. On May 1, 2009, Plaintiff filed a Second Amended Complaint accompanied by a request to "move" all of the appendices to the First Amended Complaint into the Second Amended Complaint. On May 13, 2009, the Court dismissed the Second Amended Complaint with leave to amend.
On June 9, 2009, Plaintiff filed a Third Amended Complaint. On June 10, 2009, the Court issued an "Order Directing Service of Process of Third Amended Complaint by the United States Marshal" on the County of Los Angeles and on Defendants Baca, Baker, Waters, Adams, Becerra, Molina, Clark, Peck and Malone in their individual capacities.
On June 29, 2009, the United States Court of Appeals for the Ninth Circuit dismissed Plaintiff's appeal pursuant to Plaintiff's request for a voluntary dismissal.
On August 25, 2009, Defendants Baca and Molina filed motions to dismiss. On October 23, 2009, the Court dismissed the Third Amended Complaint with leave to amend. Although the Court later granted Plaintiff a requested extension, Plaintiff did not file a timely Fourth Amended Complaint. Therefore, on December 22, 2009, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action without prejudice for failure to prosecute.
On December 22, 2009, however, Plaintiff filed another request for an extension of time to file a Fourth Amended Complaint. Therefore, on December 28, 2009, the Magistrate Judge withdrew the Report and Recommendation and granted Plaintiff an extension of time to file a Fourth Amended Complaint.
Plaintiff again failed to file a timely Fourth Amended Complaint within the allotted time. Therefore, on February 1, 2009, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action without prejudice for failure to prosecute. Plaintiff did not file any objections or any other document in response to the Report and Recommendation. On March 9, 2009, the District Court issued an Order approving and adopting the Report and Recommendation. Judgment was entered on March 10, 2010.
Plaintiff filed a Notice of Appeal on March 25, 2010. On February 3, 2012, the United States Court of Appeals for the Ninth Circuit affirmed the judgment. The mandate was entered in this Court on February 6, 2012.
PLAINTIFF'S ALLEGATIONS IN THE PRESENT COMPLAINT
Plaintiff alleges that, since February 2, 2001, he has been a civil detainee confined at the Los Angeles County Jail "Twin Towers" facility pending civil proceedings under California's Sexually Violent Predators Act, California Welfare and Institutions Code § 6600 et seq. ("SVP Act") (Complaint, pp. 2, 5). In the section of the Complaint entitled "Defendants," Plaintiff identifies the Defendants as: (1) "Sheriff" Tanaka; (2) Supervisor Molina; (3) sheriff's captains Marilyn Baker, David Waters, Gary L. Adams and I. Becerra; (3) jail chief physicians John Clark, Sander Peck and Young; (4) Dr. Donald S. Minckler, the Director of Glaucoma Services at the Keck School of Medicine at the University of Southern California ("USC"); (5) medical student Jane Doe; (6) jail dietary supervisor Mr. McDonald; and (7) D.A. Cruz of the jail Legal Unit, Inmate Pro-Per Services. Plaintiff sues all of these Defendants in their individual and official capacities. As discussed below, however, the body of the Complaint appears to allege claims against numerous other persons. Plaintiff seeks unspecified injunctive relief, punitive damages in the sum of $524 million, and (apparently) an order requiring unidentified sheriff's department employees to testify "confidentially" (Complaint, "Request for Prayer for Relief").
The Complaint purports to allege twelve claims for relief, some of which contain overlapping allegations:
Claim One
In Claim One, Plaintiff alleges that, in September of 1999, Plaintiff was diagnosed with glaucoma of both eyes (Complaint, p. 6). Plaintiff alleges that, following Plaintiff's transfer to the jail, Dr. Williams examined Plaintiff and prescribed medication, including pain medication (id.). Unidentified nurses allegedly denied Plaintiff his pain medication from 2004 through 2006 (id.). On or about February 1, 2005, "Jane Doe," allegedly a medical student at the Doheny Eye Institute, Keck School of Medicine, assertedly deliberately misdiagnosed Plaintiff, allegedly causing Plaintiff to lose vision in his left eye and to suffer pain and injury to his right eye (id.). Plaintiff also alleges that an unidentified person or persons denied Plaintiff "doctor-prescribed" eye drops (id.).
It is unclear whether these eye drops are the same medications allegedly prescribed by Dr. Williams.
Plaintiff further alleges that unidentified persons caused unhealthy conditions by using their feet to slide Plaintiff's medication under his cell door (id.). Plaintiff alleges that the Supervisor of Medical Services for the jail, who is unidentified, failed to train his or her subordinates to give Plaintiff adequate medical treatment and to provide medication in a proper manner (id.).
Claim Two
Plaintiff alleges Dietary Services Supervisor McDonald and Medical Diets Supervisor Francisco Lerena failed to train their staffs properly, causing Plaintiff to be denied his allegedly doctor-prescribed and court-ordered "No Red Meat" diet (Complaint, p. 7). According to Plaintiff, these supervisors should have known of a history of cancer in Plaintiff's family and Plaintiff's allegedly high risk for cancer (id.). Plaintiff alleges that dietary staff member Blanca Moran and other staff members denied Plaintiff his allegedly prescribed "No Red Meat" diet, and that staff members "Jane Doe" and "Ms. Lee" denied Plaintiff a prescribed "No Spice" diet, allegedly causing Plaintiff to throw up (id.). According to Plaintiff, he was unable to eat his one hot meal for seven days (id.).
Plaintiff also alleged that unidentified "medical diet employees and deputies" used inmates to "food-poison" Plaintiff, assertedly causing Plaintiff to throw up and defecate "uncontrollably" for three days, and necessitating treatment with an "I.V." for six hours (id., pp. 7-8). Plaintiff contends medical staff knew that inmates who were not civil detainees were prohibited from coming into contact with a detainee's food (id., p. 8). Plaintiff also alleges medical staff denied Plaintiff treatment for this condition (id., p. 8).
Claim Three
Plaintiff alleges that, due to the failure of Sheriff Baca and Defendants Baker and Waters properly to train their subordinates, Plaintiff was placed in administrative segregation from approximately October 12, 2004 until July 5, 2007, without a hearing, during which time he allegedly was denied privileges and access to a law library (id.). Plaintiff further alleges these Defendants allowed their subordinates to put Plaintiff's life in danger by placing him in administrative segregation with "convicted serious murderers such as Clarence Dwayne [sic] Turner," and by allowing Plaintiff to be attacked by penal inmates (id.). Plaintiff further alleges that these Defendants allowed their deputies: (1) to retaliate against Plaintiff for filing inmate complaints; (2) to discriminate against Plaintiff on account of race; and (2) to treat Plaintiff as a penal inmate (id.).
Claim Four
Plaintiff alleges that Sergeant McLone, deputies Gudino, Julian, Pitino and Wargo, and other unidentified deputies denied Plaintiff access to the courts and retaliated against Plaintiff for filing grievances "based on their discrimination against [Plaintiff] for being a sexual predator" (Complaint, p. 9). These individuals also allegedly denied Plaintiff his one hour, doctor-prescribed out-of-cell exercise time (id.). Defendants allegedly denied Plaintiff medication for his glaucoma and access to the medical clinic (id.). Deputy Gudino allegedly took four boxes of Plaintiff's legal materials, the loss of which assertedly prejudiced Plaintiff's ability to present an adequate defense in his SVP proceedings (id.).
Defendants allegedly housed Plaintiff with penal inmates "with the expectation of having [Plaintiff] attacked and possibly killed" by convicted murderer inmate Turner (id.). Inmate Turner allegedly threatened Plaintiff in December of 2006, saying he, Turner, was going to make Plaintiff "'victim #12'" (id.).
Defendants also assertedly denied Plaintiff the ability to speak to a supervisor (id.). Plaintiff allegedly received no response to Plaintiff's "numerous" grievances (id.). Defendants allegedly discriminated against Plaintiff on account of Plaintiff's race and status as a sexually violent predator detainee (id.).
Plaintiff further alleges that, on July 5, 2005, several "John Doe" deputies and an unidentified supervisor subjected Plaintiff to excessive force by "forcefully" handcuffing Plaintiff after Plaintiff requested to speak with a supervisor concerning his "No Red Meat" diet (id., p. 10). According to Plaintiff, a 280-pound deputy dropped his weight on Plaintiff's back, and other deputies placed Plaintiff's hands high above his shoulder blades, assertedly causing Plaintiff serious injury (id.). Plaintiff alleges he was slammed against a door jamb, causing Plaintiff's lip to split (id.). Plaintiff allegedly was removed with his arms forced up and then slammed against a staging door (id.). The deputies allegedly slammed Plaintiff's face into a metal screen, breaking Plaintiff's eyeglasses and injuring his face and neck (id.). The deputies then reportedly handcuffed Plaintiff so tightly as to cut off Plaintiff's circulation and bruise his wrists (id.). Plaintiff allegedly was left in this condition in the yard without medical attention for over five hours (id.). An unidentified senior deputy allegedly observed this incident but reportedly did nothing to protect Plaintiff (id.). Plaintiff alleges that, the next morning, nurse Kim denied Plaintiff medical care because the nurse assertedly was afraid of the deputies (id.). Plaintiff allegedly did not receive medical attention for two weeks (id.).
Claim Five
Plaintiff alleges that "Custody Assistant D.A. Cruz," deputy Bisaha, and other deputies assigned to the Legal Unit denied Plaintiff law library access despite court orders for library access and legal supplies from March 22, 2001 through July 2007 (Complaint, p. 11). These denials allegedly caused "irreparable harm" to seven state and federal lawsuits in which Plaintiff was involved, including his SVP proceedings (id.). Other unidentified "John Doe" deputies also reportedly denied Plaintiff access to the module law library, causing harm to Plaintiff's cases (id.). Plaintiff further alleges that, in retaliation for Plaintiff's grievances, unidentified deputies left Plaintiff in an unsanitary, smelly library bathroom for 12 hours, and left Plaintiff in a shower that smelled of urine (id.).
Claim Six
Plaintiff alleges that deputy Benahizee and a psychiatrist, Dr. King, exhibited deliberate indifference and retaliated against Plaintiff for filing grievances by causing to be filed a fraudulent "psych report" alleging Plaintiff was "homicidal/suicidal" (Complaint, p. 12). Deputies allegedly confined Plaintiff in a wheelchair in excessively tight waistchains and took him to the office of Dr. Green, who assertedly said he, Dr. Green, would send Plaintiff to the forensics floor with eye medication and medical orders for a "No Red Meat Diet," but that Dr. Green would not clear Plaintiff from being labeled "homicidal/suicidal" (id.). Plaintiff allegedly was almost placed in a "5-Points Restraint Bed" (id.).
Claim Seven
Plaintiff alleges that deputies Bisaha and Smeltzer denied Plaintiff his right of privacy when these deputies entered Plaintiff's cell and examined and videotaped Plaintiff's legal documents (Complaint, pp. 12-13). These actions allegedly caused irreparable injury to Plaintiff's other lawsuits (id., p. 13).
Claim Eight
Plaintiff alleges that unidentified deputies retaliated against Plaintiff for filing complaints and contacting the ACLU concerning inadequacies in the law library, assertedly by leaving Plaintiff in a law library lacking toilet facilities for six to twelve hours, which allegedly caused pain to Plaintiff's liver and kidneys (Complaint, pp. 13-14). These actions allegedly hindered Plaintiff in the prosecution of his various lawsuits, allegedly from approximately March 6, 2002 "continuously" until June 2007 (id., p. 14).
Plaintiff also alleges the library had no toilet or running water in the library, bad lighting, defective telephones and computer and no "ADA computer screens" (id.). Plaintiff alleges that sheriff's employee Smilor said he, Smilor, would put his urine in Plaintiff's doctor-prescribed special diet (id.). Plaintiff allegedly attempted to notify Sheriff Baca and other supervisors concerning the alleged denial of Plaintiff's privileges and rights due to a lack of training (id.).
Claim Nine
Plaintiff alleges that, on September 5, 2007, Nurse Cruz told Plaintiff that Plaintiff had an "ACLU medical court order" for a "No Spice" diet, "which was denied to [Plaintiff]" (Complaint, p. 14). Plaintiff allegedly was told to see a doctor, but Nurse Basilis refused to allow Plaintiff to see a doctor (id., pp. 14-15). When Plaintiff protested that he allegedly had a court order to see a doctor, Deputy Briseno allegedly grabbed Plaintiff and slammed Plaintiff's face into a wall (id., p. 15). Deputies then allegedly took Plaintiff to his housing module and slammed Plaintiff face first into the wall beside his cell (id.). Sergeant Christiansen allegedly stood by, failed to intervene to protect Plaintiff, and then ordered Plaintiff locked in his cell without any medical attention (id.). A "pill call" nurse allegedly refused Plaintiff's request for medical treatment for severe pain, and refused to document Plaintiff's injuries (id.).
The next morning, deputy Cobb and a "Jane Doe" nurse allegedly came to Plaintiff's cell to administer medication before Plaintiff went to court (id.). Plaintiff, who allegedly could barely get out of bed, assertedly stated he had severe pain in his neck, back and face and wanted to see a doctor (id., pp. 15-16). The nurse allegedly denied Plaintiff's request to see a doctor (id., p. 16). Later, Plaintiff allegedly told deputies Owens and Pimentel that Plaintiff was in severe pain and asked to see a doctor (id.). Plaintiff allegedly was taken to the clinic, where nurses assertedly denied Plaintiff access to a doctor (id.). Owens allegedly fastened waistchains on Plaintiff which were so tight that they caused bruises and broke the skin on Plaintiff's wrist (id.). The deputies and nurses allegedly refused Plaintiff's requests to see a doctor (id.). The deputies allegedly pulled Plaintiff to the floor and placed their knees on Plaintiff's spine, assertedly causing severe pain to Plaintiff's spine, back and neck (id., p. 17). Deputy Pimentel allegedly stuck his fingers into Plaintiff's eyes and sprayed "O.C. Mace" into Plaintiff's eyes and mouth (id.). Medical employees Adu, Farole and other staff nurses allegedly observed the attack and Plaintiff's injuries, but left the scene and failed to document the incident or Plaintiff's injuries (id.).
The deputies allegedly left Plaintiff in a holding tank for thirty minutes without any means of washing his eyes (id.). According to Plaintiff, a nurse appeared and allegedly sprayed water in Plaintiff's eyes, which allegedly did not relieve the pain because Plaintiff assertedly has glaucoma, macular hole degeneration and other eye diseases (id.). This incident allegedly has caused Plaintiff to suffer blurred vision, severe headaches and dizziness (id.). Plaintiff further alleges that, on September 5 and 6, 2007, sheriff's doctors Wilbur Williams, Raleigh Saddler, Jr. and "Dr. Doe" denied Plaintiff medical care for his eyes, face, head, neck, spine and back (id., p. 18). Dr. Williams allegedly made a fraudulent examination report (id.).
Sergeant Patterson allegedly made a video, and Plaintiff allegedly was locked down in his cell for four days without any reason (id.). On September 30, 2007, Sergeant Christiansen and other deputies allegedly videotaped Plaintiff's statement concerning the alleged assault (id.). Sergeant Christiansen allegedly falsely denied being involved in the assault (id.). Sergeant Christiansen allegedly took Plaintiff to the medical clinic, videotaping Plaintiff during the trip, and told the nurse to tell the doctor that Plaintiff had a "small acute arthritis" in his neck (id.). A "Dr. Doe" allegedly refused to examine Plaintiff, gave Plaintiff a pain pill, and said he would have Plaintiff's lower back x-rayed (id., p. 19). Without examining Plaintiff, the doctor said Plaintiff had a "small acute arthritis" of the neck (id.). Plaintiff alleges the failure of any doctor to examine Plaintiff constituted retaliation against Plaintiff for filing "over 2,875 Inmate Complaint Forms against Sheriff's employees" (id.) (original emphasis).
Claim Ten
Plaintiff alleges that, on September 22 and September 30, 2007, Lieutenants Slago and Lopez confined Plaintiff in administrative segregation, assertedly without affording Plaintiff his right to call staff and inmate witnesses in his defense (Complaint, p. 19). Sergeants Figueroa, Wenger and Estrada allegedly failed to train their subordinates, assertedly causing Plaintiff to be placed unlawfully in administrative segregation with penal inmates, which allegedly put Plaintiff's life in danger (id.).
Claim Eleven
Plaintiff alleges that, from August 28, 2007 to the present, Head Supervising Cook Lily Sedaña, deputy Felicia Price, and unnamed medical supervisors and staff have retaliated against Plaintiff for filing grievances by denying Plaintiff his allegedly doctor- and court-ordered "No Spice Diet" (Complaint, p. 20).
Claim Twelve
Plaintiff alleges that, on February 25, 2008, two unidentified transportation deputies committed negligence by failing to report to Coalinga State Hospital medical department supervisors that the engine on the Twin Towers facility bus was spilling fuel on the freeway (Complaint, p. 21). Plaintiff, allegedly a bus passenger, was exposed to assertedly toxic fumes which allegedly caused pain and injury to Plaintiff's respiratory and cardio pulmonary functions (id.). Plaintiff also allegedly had to obtain an injection to prevent Plaintiff from throwing up (id.).
DISCUSSION
I. Unclear Identification of Defendants
As mentioned above, Plaintiff identifies certain Defendants in the caption and introductory paragraphs of the Complaint, but also appears to assert claims against many other individuals, some identified by name in the various claims for relief and some identified by fictitious names. It is unclear which of these other persons Plaintiff intends to sue. It also is unclear which Defendants are being sued on which claim for relief. As the Court previously advised Plaintiff in Shehee v. Baca, a complaint is subject to dismissal if one cannot determine from the pleading who is being sued. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
A plaintiff may name a fictitious defendant in his or her complaint if the plaintiff does not know the true identity of the defendant prior to the filing of the complaint. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, before the Court can order service of process by the United States Marshal upon any fictitious Defendant, Plaintiff must provide identifying information sufficient to permit the United States Marshal to effect service of process upon the Defendant, including the Defendant's full name and address.
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II. Official Capacity Claims
The official capacity claims against the individual Defendants must be construed as claims against the County. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). As the Court previously advised Plaintiff in Shehee v. Baca, Plaintiff may not sue the County or any municipal entity on a theory of respondeat superior, which is not a theory of liability cognizable under 42 U.S.C. section 1983. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Polk County v. Dodson, 454 U.S. 312, 325 (1981); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). A municipal entity may be held liable only if the alleged wrongdoing was committed pursuant to a municipal policy, custom or usage. See Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978). Plaintiff does not allege any basis for municipal liability against the County. Conclusory allegations do not suffice. See Ashcroft v. Iqbal, 556 U.S. at 678 (plaintiff must allege more than an "unadorned, the-defendant-unlawfully-harmed-me accusation"; a pleading that "offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do"); Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 2101 (2012) ("allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively"); see also AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (pleading standards set forth in Starr v. Baca govern municipal liability claims).
Additionally, Plaintiff may not recover punitive damages against a governmental entity or an individual governmental officer in his or her official capacity. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 (9th Cir.), cert. denied, 528 U.S. 1003 (1999).
III. Personal Involvement of Individual Defendants
As the Court previously advised Plaintiff in Shehee v. Baca, an individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff may not sue any supervisor on a theory that the supervisor is liable for the acts of his or her subordinates. See Polk County v. Dodson, 454 U.S. at 325. A supervisor may be held liable in his or her individual capacity "for [his or her] own culpable action or inaction in the training, supervision or control of [his or her] subordinates." Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). To state a claim against any individual defendant, the plaintiff must allege facts showing that the individual defendant participated in or directed the alleged violation, or knew of the violation and failed to act to prevent it. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff fails to allege the personal involvement of several of the Defendants or putative Defendants. For example, Plaintiff names Paul Tanaka, Supervisor Molina, the chief physicians of the jail, Dr. Minckler, and sheriff's captains Adams and Becerra, but generally fails to allege facts showing these persons' personal involvement in any alleged civil rights violation. The Complaint is insufficient as to those Defendants or putative Defendants as to whom Plaintiff fails to plead personal involvement in any alleged constitutional violation.
IV. Claims Implicating Validity of SVP Determination
Claim Twelve suggests Plaintiff may now be confined at the Coalinga State Hospital, a facility under the jurisdiction of the California Department of Mental Health which houses those determined to be sexually violent predators. See Cal. Welf. & Inst. Code §§ 4100(b), 7200.
The SVP Act establishes procedures whereby a person previously convicted of a "sexually violent" offense against two or more victims and who suffers from a "diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior" may be civilly committed for a determinate period. See Cal. Welf. & Inst. Code § 6600 et seq.; Seaton v. Mayberg, 610 F.3d 530, 532-33 (9th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011). Following the filing of a petition for a determination that an individual is a sexually violent predator, the Superior Court must hold a hearing to determine whether there is probable cause to believe that the person is likely to engage in sexually violent predatory criminal behavior upon release from prison. See Cal. Welf. & Inst. Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th 1138, 1146-47, 81 Cal. Rptr. 2d 492, 969 P.2d 584 (1999). If the court finds probable cause, the alleged predator must be detained in a "secure facility" pending a jury trial to determine whether he is a sexually violent predator within the meaning of the SVP Act. See Cal. Welf. & Inst. Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th at 1146-47. After a trial at which the defendant is determined to be a sexually violent predator, the defendant is committed to the custody of the California Department of Mental Health for an indefinite term. See Cal. Welf. & Inst. Code §§ 6604; Hubbart v. Superior Court, 19 Cal. 4th at 1147.
Plaintiff's allegations concerning his asserted transportation from the jail to the Coalinga State Hospital suggest that Plaintiff's continuing confinement resulted from a determination in the state court proceedings that Plaintiff is a sexually violent predator. In several of his claims, Plaintiff contends that various Defendants' alleged misconduct caused prejudice to Plaintiff in the SVP proceedings (see, e.g., Complaint, Ground Four, p. 9; Ground Five, p. 11; Ground Seven, p. 13; Ground Eight, pp. 13-14).
As the Court previously advised Plaintiff, in Heck v. Humphrey, 512 U.S. 477 (1994) ("Heck"), the Supreme Court held that, in order to pursue a claim for damages arising out of an allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a civil rights plaintiff must prove that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-487. Heck applies where a inmate challenges an SVP determination in a suit for damages. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140-41 (9th Cir. 2005), cert. denied, 547 U.S. 1166 (2005). Therefore, to the extent Plaintiff asserts claims for damages implicating the validity of a finding that Plaintiff is an SVP, Heck bars those claims.
V. Alleged Deliberate Indifference to Medical Needs
Plaintiff asserts a number of claims that jail officials were deliberately indifferent to Plaintiff's alleged medical needs. The Eighth Amendment's prohibition against cruel and unusual punishment does not apply to civil committees. See Rainwater v. Alarcon, 268 Fed. App'x 531, 535 (9th Cir. 2008); Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1042 (9th Cir.), cert. denied, 519 U.S. 1006 (1996) (Eighth Amendment's proscription against cruel and unusual punishment applies only after conviction). The Due Process Clause of the Fourteenth Amendment provides protection to SVPs that "is at least coextensive with that applicable to prisoners under the Eighth Amendment." Rainwater v. Alarcon, 268 Fed. App'x at 525 (citation and internal quotations omitted). As the Court previously advised Plaintiff in Shehee v. Baca, jail officials can violate the constitution if they are "deliberately indifferent" to an inmate's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (same); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003) (Due Process standard).
To be liable for "deliberate indifference," a jail official must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. at 837. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Id. at 838. Plaintiff's allegations of negligence do not suffice. See Estelle v. Gamble, 429 U.S. at 105-06 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner").
"A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (examples of "serious medical needs" include "a medical condition that significantly affects an individual's daily activities," and "the existence of chronic and substantial pain"; citation and internal quotations omitted). Plaintiff's allegation that unidentified persons used their feet to slide Plaintiff's medication under the cell door does not allege any deliberate indifference to a serious medical need of Plaintiff. Plaintiff fails to allege that he did not receive the medication, or that the medication was contaminated in a way to cause serious injury to Plaintiff if ingested.
VI. Alleged Denial of Access to the Courts
As the Court previously advised Plaintiff in Shehee v. Baca, an inmate claiming a violation of his right of access to the courts must demonstrate that he has standing to bring the claim by showing the defendant's actions caused him to suffer "actual injury" in pursuit of either a direct or collateral attack upon a conviction or sentence or a challenge to the conditions of confinement. Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Johannes v. County of Los Angeles, 2011 WL 6149244, at *13 (C.D. Cal. Apr. 8, 2011) (civil detainees have constitutional right of access to the courts; citations omitted). Under Lewis v. Casey, an inmate must show that an action was "lost or rejected," or that presentation of a non-frivolous claim was or is being prevented, as a result of the alleged denial of access. Id. at 356. Actual injury is not demonstrated by the simple fact that a prisoner is "subject to a governmental institution that was not organized or managed properly." Id. at 350. Although Plaintiff alleges that various Defendants or putative Defendants interfered with Plaintiff's ability to prosecute his various lawsuits, Plaintiff does not allege how any asserted particular denial of access to the law library or legal materials rendered Plaintiff unable to present any particular non-frivolous claim, or caused any particular action to be "lost or rejected."
VII. Alleged Failure to Respond to Grievances
To the extent Plaintiff alleges Defendants or putative Defendants failed to respond to grievances, the Complaint fails to state a claim for relief. While inmates may enjoy a First Amendment right to file prison grievances, see Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005), inmates have no "separate constitutional entitlement to a specific prison grievance procedure." See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004) (citation omitted). The failure of prison officials to respond to or process a particular grievance does not violate the Constitution. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Morris v. Newland, 2007 WL 707525, at *7 (E.D. Cal. March 6, 2007), adopted, 2007 WL 987846 (E.D. Cal. March 30, 2007) ("a failure to process a grievance does not state a constitutional violation") (citation omitted); Alonzo v. Squyres, 2002 WL 1880736, at *1 (N.D. Cal. Aug. 9, 2002) ("Although there certainly is a right to petition the government for redress of grievances (a First Amendment right), there is no right to a response or any particular action.") (citations omitted); see also Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003) ("[t]he right to petition the government for redress of grievances, however, does not guarantee a favorable response, or indeed any response, from state officials").
VIII. Alleged Retaliation
Jail officials may not retaliate against detainees who exercise their First Amendment rights. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Bradley v. Hall, 64 F.3d 1276, 1281 (9th Cir. 1995); Endsley v. Luna, 2009 WL 3806266, at *14 (C.D. Cal. Nov. 12, 2009), aff'd, 473 Fed. App'x 750 (2012). To allege retaliation, Plaintiff must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate goals of the institution, such as preserving institutional order and discipline. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (citations and internal quotations omitted). Although Plaintiff sprinkles allegations of retaliation throughout the Complaint, in a number of instances Plaintiff fails to link the alleged retaliation to any particular act or omission of a particular Defendant or putative Defendant. Such confused and conclusory allegations of retaliation are insufficient. See Wise v. Washington State Dep't of Corrections, 244 Fed. App'x 106, 108 (9th Cir. 2007), cert. denied, 552 U.S. 1282 (2008) (prisoner's conclusory allegations of retaliation, "without supporting facts connecting the defendants to his litigation activities," insufficient).
IX. Alleged Race Discrimination
Inmates are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). As the Court previously advised Plaintiff in Shehee v. Baca, to allege an equal protection violation, Plaintiff must allege he was intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). The Complaint contains no such allegations. Therefore, Plaintiff has failed to plead a cognizable race discrimination claim. See Hamilton v. Adamik, 2007 WL 2782840, at *4 (N.D. Cal. Sept. 24, 2007) (prisoner's conclusory and ambiguous allegations of race discrimination insufficient).
X. Plaintiff's Address of Record
As previously indicated, as in Shehee v. Baca, Plaintiff lists two different addresses of record: one at the Coalinga State Hospital and one at the Twin Towers County Jail. Plaintiff again is advised that Rule 41-6 of the Local Rules of Practice of the United States District Court for the Central District of California requires a party proceeding pro se to keep the Court and the opposing parties apprised of such party's current address and telephone number, if any. The Court may dismiss an action for failure to maintain a current address of record. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Any First Amended Complaint should state Plaintiff's current address of record.
CONCLUSION AND ORDER
For all of the foregoing reasons, the Complaint is dismissed with leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc); 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. The First Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. Any First Amended Complaint must identify clearly the Defendants being sued on each claim for relief, and must allege clearly how each Defendant assertedly violated Plaintiff's rights. Plaintiff may not add Defendants without leave of court. See Fed. R. Civ. P. 21. Failure to file a timely First Amended Complaint may result in the dismissal of this action.
____________________
PERCY ANDERSON
UNITED STATES DISTRICT JUDGE
Presented this 20th day of December, 2012, by: ____________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE