1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES BLALOCK, No. 2:17-cv-1813 TLN AC P 12 Plaintiff, 13 v. ORDER 14 J. CLARK KELSO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF Nos. 2, 5. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 //// 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that defendants Kelso, Spearman, Miranda, and Gideon violated 14 plaintiff’s rights under the Eighth Amendment by denying him medical care. ECF No. 1 at 3. 15 Specifically, plaintiff asserts that as part of a healthcare appeal, Miranda, a physician’s assistant, 16 found that he did not meet the requirements to have an MRI or to be sent to an orthopedist, even 17 though his x-ray and CT scan showed that he had severe damage to his spine that required 18 treatment by an orthopedist. Id. at 3-4. Gideon, who was Miranda’s supervising physician and 19 had to sign off on Miranda’s report, approved the denial. Id. Both defendants were aware that 20 plaintiff was in constant agony and had limited movement of his head, and their actions delayed 21 by several months his ability to get surgery to fix his neck bones and fuse his spine. Id. at 4. 22 Plaintiff was only able to get surgery because he was seen by another doctor who ordered an MRI 23 and requested surgery. Id. After the surgery, Miranda interfered with plaintiff’s pain 24 management in what appeared to be retaliation by starting and stopping his medications and 25 reducing his morphine. Id. at 5. 26 IV. Claims for Which a Response Will Be Required 27 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 28 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 2 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 3 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 4 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 5 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 6 Deliberate indifference is established only where the defendant subjectively “knows of and 7 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 8 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate 9 indifference can be established “by showing (a) a purposeful act or failure to respond to a 10 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d 11 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high 12 risk of harm that is either known or so obvious that it should be known”) is insufficient to 13 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 14 (1994) (citations omitted). 15 Plaintiff’s allegations that defendants Miranda and Gideon refused to order an MRI and 16 send him to an orthopedist, thereby delaying his surgery and causing him unnecessary pain, are 17 sufficient to state claims for relief. His further assertion that Miranda deliberately interfered with 18 his pain management also states a claim for relief. These defendants will be required to respond 19 to the complaint. 20 V. Failure to State a Claim 21 A. Retaliation 22 A viable First Amendment claim for retaliation must establish the following five 23 elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) 24 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 25 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 26 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and 27 citations omitted). Plaintiff need not prove that the alleged retaliatory action, in itself, violated a 28 constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation 1 claim, plaintiff “need not establish an independent constitutional interest” was violated); Hines v. 2 Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[P]risoners may still base retaliation claims on harms 3 that would not raise due process concerns.”). 4 Plaintiff alleges that defendant Miranda’s interference with his pain management appeared 5 to be retaliatory. However, he does not explain what protected action the retaliatory behavior was 6 in response to, and therefore fails to state a claim for retaliation. 7 B. Defendants Kelso and Spearman 8 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 9 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 10 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 11 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 12 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 13 Additionally, “[t]here is no respondeat superior liability under section 1983.” Taylor v 14 List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). “A defendant may be held liable as a 15 supervisor under § 1983 ‘if there exists either (1) his or her personal involvement in the 16 constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful 17 conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) 18 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the 19 constitutional violations of his subordinates if he “knew of the violations and failed to act to 20 prevent them.” Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without 21 any personal participation if the official implemented “a policy so deficient that the policy itself is 22 a repudiation of the constitutional rights and is the moving force of the constitutional violation.” 23 Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 24 marks omitted), abrogated on other grounds by Farmer, 511 U.S. 825. 25 Plaintiff makes no claims against defendants Kelso and Spearman and simply identifies 26 them as the Federal Receiver and Warden, respectively. It appears that these defendants have 27 been named solely based upon their supervisory roles, which is insufficient to state claims for 28 relief against them. 1 Since it appears plaintiff is attempting to bring claims against Kelso based solely on his 2 position as Receiver for CDCR’s healthcare system, Kelso is also entitled to quasi-judicial 3 immunity. Plata v. Schwarzenegger (Plata), C01-1351-THE, ECF No. 1063 at 5 (N.D. Cal. Jan. 4 23, 2008) (appointing Kelso as Receiver).1 In appointing a Receiver, the court stated that “[t]he 5 Receiver and his staff shall have the status of officers and agents of this Court, and as such shall 6 be vested with the same immunities as vest with this Court.” Plata, ECF No. 473 at 6 (N.D. Cal. 7 Feb. 14, 2006)). 8 “Absolute judicial immunity is not reserved solely for judges, but extends to nonjudicial 9 officers for ‘all claims relating to the exercise of judicial functions.’” In re Castillo, 297 F.3d 10 940, 947 (9th Cir. 2002) (quoting Burns v. Reed, 500 U.S. 478, 499 (1991) (Scalia, J., concurring 11 in part and dissenting in part)). “Judicial or quasi-judicial immunity is not available only to those 12 who adjudicate disputes in an adversarial setting. Rather, the immunity is extended in appropriate 13 circumstances to non jurists ‘who perform functions closely associated with the judicial 14 process.’” Id. at 948 (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). “Under federal 15 law, court-appointed ‘receivers are court officers who share the immunity awarded to judges.’” 16 Alta Gold Mining Co. v. Aero-Nautical Leasing Corp., 656 F. App’x 316, 318 (9th Cir. 2016) 17 (quoting New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1303 (9th Cir. 1989)). “[Judicial] 18 immunity is overcome in only two sets of circumstances. First, a judge is not immune from 19 liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a 20 judge is not immune for actions, though judicial in nature, taken in the complete absence of all 21 jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (internal citations omitted). 22 Since it appears Kelso has been named solely based on his role as Receiver, and plaintiff 23 has not alleged any facts showing Kelso acted outside the scope of his jurisdiction, the claims 24 against Kelso are barred.

25 1 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 VI. Leave to Amend 2 For the reasons set forth above, the court finds that the complaint does not state any 3 cognizable claims against defendants Kelso and Spearman or against defendant Miranda for 4 retaliation. However, it appears that plaintiff may be able to allege facts to remedy this and he 5 will be given the opportunity to amend the complaint if he desires. 6 Plaintiff may proceed immediately to serve defendants Miranda and Gideon on his Eighth 7 Amendment claims, or he may delay serving any defendant and amend the complaint. 8 Plaintiff will be required to complete and return the attached notice advising the court how 9 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 10 file an amended complaint. If plaintiff elects to proceed on his Eighth Amendment claims against 11 Miranda and Gideon without amending the complaint, the court will proceed to serve the 12 complaint. A decision to go forward without amending the complaint will be considered a 13 voluntarily dismissal without prejudice of all claims against Kelso and Spearman and for 14 retaliation against Miranda. 15 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 16 about which he complains resulted in a deprivation of his constitutional rights. Rizzo, 423 U.S. at 17 370-71. Also, the complaint must allege in specific terms how each named defendant is involved. 18 Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability 19 under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s 20 actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations 22 are not sufficient.” Ivey, 673 F.2d at 268 (citations omitted). 23 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 24 his amended complaint complete. Local Rule 220 requires that an amended complaint be 25 complete in itself without reference to any prior pleading. This is because, as a general rule, an 26 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 27 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 28 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 1 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 2 the original complaint no longer serves any function in the case. Therefore, in an amended 3 complaint, as in an original complaint, each claim and the involvement of each defendant must be 4 sufficiently alleged. 5 VII. Plain Language Summary of this Order for a Pro Se Litigant 6 Your request to proceed in forma pauperis is granted and you are not required to pay the 7 entire filing fee immediately. 8 Some of the allegations in the complaint state claims against the defendants and some do 9 not. Your claims that defendants Miranda and Gideon violated your rights under the Eighth 10 Amendment will require an answer. However, you have not stated a claim against Miranda for 11 retaliation because you have not explained what Miranda was retaliating against you for. You 12 also have not stated claims against Kelso and Spearman because you have not explained what 13 they did, and Kelso cannot be sued for things he did as the Receiver. 14 You have a choice to make. You may either (1) proceed immediately on your Eighth 15 Amendment claims against Miranda and Gideon and voluntarily dismiss the other claims or (2) 16 try to amend the complaint. If you want to go forward without amending the complaint, you will 17 be voluntarily dismissing without prejudice all of your claims against Kelso and Spearman and 18 your retaliation claim against Miranda. If you choose to amend your complaint, the amended 19 complaint must include all of the claims you want to make, including the ones that have already 20 been found to state a claim, because the court will not look at the claims or information in the 21 original complaint. Any claims not in the amended complaint will not be considered. You 22 must complete the attached notification showing what you want to do and return it to the court. 23 Once the court receives the notice, it will issue an order telling you what you need to do next (i.e. 24 file an amended complaint or wait for defendants to be served). 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 27 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 28 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 1 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 2 || Director of the California Department of Corrections and Rehabilitation filed concurrently 3 | herewith. 4 3. Plaintiff's claims against defendants Kelso and Spearman and his retaliation claim 5 || against defendant Miranda do not state claims for which relief can be granted. 6 4. Plaintiff has the option to proceed immediately on his Eighth Amendment claims 7 || against defendants Miranda and Gideon as set forth in Section IV above, or to amend the 8 || complaint. 9 5. Within fourteen days of service of this order, plaintiff shall complete and return the 10 || attached form notifying the court whether he wants to proceed on the screened complaint or 11 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 12 | will assume that he is choosing to proceed on the complaint as screened and will recommend 13 | dismissal without prejudice of the claims against Kelso and Spearman and the retaliation claim 14 | against Miranda. 15 || DATED: September 5, 2019 ~ 16 Chtten— Lhane

ALLISON CLAIRE

17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES BLALOCK, No. 2:17-cv-1813 TLN AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 J. CLARK KELSO, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claims against 19 defendants Miranda and Gideon without amending the complaint. Plaintiff understands 20 that by going forward without amending the complaint he is voluntarily dismissing 21 without prejudice all of his claims against defendants Kelso and Spearman and his 22 retaliation claim against Miranda. 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________

27 Charles Blalock Plaintiff pro se 28