1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD R. HANS, Case No. 1:19-cv-0622-JLT (PC)

12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE A

RESPONSE

13 v. (Doc. 1.) 14 U. BANIGA, et al., 15 Defendants. THIRTY-DAY DEADLINE

16 Plaintiff has filed a complaint asserting constitutional claims against governmental 17 employees and/or entities. (Doc. 1.) Generally, the Court is required to screen complaints brought 18 by inmates seeking relief against a governmental entity or an officer or employee of a governmental 19 entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 20 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 21 relief may be granted, or that seek monetary relief from a defendant who is immune from such 22 relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that 23 may have been paid, the court shall dismiss the case at any time if the court determines that . . . the 24 action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 25 1915(e)(2)(B)(ii). 26

I. Pleading Standard

27 A complaint must contain “a short and plain statement of the claim showing that the pleader 28 1 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 3 statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 4 v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted 5 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 6 marks and citation omitted). While factual allegations are accepted as true, legal conclusions are 7 not. Iqbal, 556 U.S. at 678. 8 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 9 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 10 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 11 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 12 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 13 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 14 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 15 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 16 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 17 at 969. 18 II. Plaintiff’s Allegations 19 Plaintiff’s claims arose while he was incarcerated at California Correctional Institution 20 (“CCI”) in Tehachapi, California. He names as Defendants Dr. U. Baniga, the CCI Chief Physician 21 and Surgeon; the California Department of Corrections and Rehabilitation (“CDCR”); and Does 1- 22 5. Plaintiff brings this action for violation of his Eighth Amendment rights, for which he seeks 23 damages, injunctive relief, and declaratory relief. The parties are named in their individual and 24 official capacities. 25 Plaintiff’s allegations may be fairly summarized as follows: 26 Plaintiff has suffered from chronic hepatitis C for over 20 years. The failure to treat the 27 condition and/or a delay in treating it can cause his condition to worsen. 28 Plaintiff began his period of incarceration in September 2017, presumably at CCI. Since that 1 time, Plaintiff has repeatedly sought treatment for his hepatitis C. However, each time that he 2 submitted a healthcare request form or asked for treatment when speaking to a medical provider 3 directly, he has either been denied care or promised care that he never received. 4 On September 18, 2018, Plaintiff submitted a health care grievance asking for treatment for 5 his condition. On September 24, 2018, Dr. Baniga “facilitated a denial” of the grievance even 6 though Dr. Baniga was aware of Plaintiff’s chronic condition and repeated requests for treatment. 7 Dr. Baniga, who is responsible for approving or denying medical care recommendations by 8 subordinate medical providers, “relies upon unreasonable policies” in making these decisions. 9 The CDCR, which retains custody of Plaintiff, has failed to provide him with adequate 10 medical care, in violation of Plata v. Schwarzenegger, N.D. Cal. C-01-1351. 11 III. Discussion 12 Plaintiff’s complaint does not state a claim for relief for several reasons, discussed below. 13 A. Doe Defendants 14 Plaintiff identifies five Doe Defendants in the caption of his pleading, but he fails to 15 assert any allegations as to them. Plaintiff is informed that should he include defendants whose 16 names are presently unknown to him, he must plead how each of the identified, though 17 unnamed, defendants has violated his rights. See Jones v. Williams, 297 F.3d 930, 934 (2002) 18 (under § 1983, plaintiff must demonstrate that each named defendant personally participated in 19 the deprivation of his rights.); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (In order to 20 state a cognizable claim, plaintiff must set forth specific factual allegations demonstrating how 21 each defendant violated his rights.). The use of John Does in pleading practice is generally 22 disfavored, but it is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); 23 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 24 1149, 1152 (E.D. Cal. 2008). 25 “John Doe” defendant liability must also be properly alleged. Plaintiff may use “Doe” 26 designations to refer to defendants whose names are unknown; however, he must number them in 27 the complaint, e.g., “John Doe 1,” “John Doe 2,” so that each numbered John Doe refers to a 28 specific person. If Plaintiff chooses to file an amended complaint, he shall either name the 1 defendants involved or list the Doe defendants involved and describe what each did not violate 2 his rights. If Plaintiff can only list these defendants as John Doe, plaintiff should allege specific 3 acts that each Doe defendant did, such as “John Doe 1 did X” and “John Doe 2 did Y.” Alexander 4 v. Tilton, 2009 WL 464486, at *5 (E.D. Cal. Feb. 24, 2009). 5 B. Eleventh Amendment Immunity 6 Plaintiff also names the CDCR as a party. However, the Eleventh Amendment bars any 7 suit against a state or state agency absent a valid waiver or abrogation of its sovereign immunity. 8 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 9 (1890). This immunity applies regardless of whether a state or state agency is sued for damages 10 or injunctive relief, Alabama v. Pugh, 438 U.S. 731, 732 (1978), and regardless of whether the 11 plaintiff's claim arises under federal or state law, Pennhurst State Sch. & Hosp. v. Halderman, 12 465 U.S. 89, 121 (1984). 13 Though Congress may validly abrogate a state's sovereign immunity by statute, the 14 Supreme Court has repeatedly emphasized that “§ 1983 was not intended to abrogate a State's 15 Eleventh Amendment immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord 16 Quern v. Jordan, 440 U.S. 332, 342 (1979). 17 Both the Ninth Circuit and the Supreme Court have recognized that the “State of California 18 has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 19 in federal court.” Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); see also 20 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded on other grounds by 21 statute, Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d–7 (observing that the 22 California Constitution does not waive the state's Eleventh Amendment immunity). 23 In the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and 24 repeatedly held that CDCR and prisons within CDCR are immune from suit under the Eleventh 25 Amendment. See, e.g., Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (“The 26 district court correctly held that the California Department of Corrections and the California 27 Board of Prison Terms were entitled to Eleventh Amendment immunity.”); Fulcher v. Cal. Dep't 28 of Corrs., 297 Fed. App'x 645, 646 (9th Cir. 2008) ( “[T]he California Department of Corrections 1 ... is a state agency that is immune from liability under the Eleventh Amendment.”); cf. Holley v. 2 Cal. Dep't of Corrs., 599 F.3d 1108, 1111-12 (9th Cir.2010) (affirming dismissal of complaint 3 against CDCR because California had not constructively waived its sovereign immunity by 4 accepting federal funds). 5 C. Official Capacity Claims 6 Plaintiff brings this suit against the Defendants in their official and individual capacities. 7 Since the only individual identified in the pleading who has allegations asserted against him is 8 Dr. Baniga, the Court considers the limits of an official capacity claim asserted against him. 9 A suit against a defendant in his or her individual capacity seeks to impose personal 10 liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person to be 11 liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply conclusions, 12 that show that the individual was personally involved in the deprivation of his civil rights.” 13 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison, a suit against a 14 defendant in his or her official capacity represents only another way of pleading an action 15 against the entity that employs the defendant. Kentucky, 473 U.S. at 165. That is, the real party 16 in interest is not the defendant named in his official capacity, but the entity that employs the 17 defendant. Id. To bring a claim against an individual in his official capacity, a plaintiff must 18 show that the constitutional deprivation resulted from the entity’s policy, custom, or practice. 19 Id.; Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). 20 Plaintiff may not obtain damages from Dr. Baniga in his official capacity. See Hafer v. 21 Melo, 502 U.S. 21, 27 (1991) (“State officials sued for damages in their official capacity are not 22 ‘persons’ for purposes of the suit because they assume the identity of the government that 23 employs them.”); see also Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 24 1991). Therefore, Plaintiff’s claim for money damages against Dr. Baniga is subject to 25 dismissal insofar as it is asserted against him in his official capacity. However, a state official 26 can be sued in his official capacity for prospective injunctive relief. Will v. Michigan Dep't of 27 State Police, 491 U.S. 58, 71 n.10 (1989). 28 /// 1 D. Plata v. Schwarzenegger 2 Plaintiff makes several references to the class action case, Plata v. Schwarzenegger, case 3 no. C–01–1351 TEH (N.D. Cal., filed Apr. 5, 2001). Insofar as Plaintiff seeks systemic changes 4 for treatment of hepatitis C, the pending class action in Plata serve as a bar. Where a plaintiff is 5 seeking injunctive relief on claims are subject to a consent decree, such claims must be pursued 6 through the consent decree or class counsel. Frost v. Symington, 197 F.3d 348, 358-59 (9th Cir. 7 1999); Crayton v. Terhune, C-98-4386 CRB(PR), 2002 WL 31093590, *4 (N.D. Cal. Sept. 17, 8 2002). Plaintiff may, however, pursue damages claims under section 1983, Hiser v. Franklin, 94 9 F.3d 1287, 1291 (9th Cir. 1996), and he is not necessarily barred from seeking injunctive relief 10 for his individual claim, Pride v. Correia, 719 F.3d 1130, 1137 (9th Cir. 2013). But he cannot 11 receive systemic injunctive relief. 12 E. Eighth Amendment Medical Indifference 13 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the 14 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate 15 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth 16 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and 17 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 18 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 19 Cir. 1997) (en banc). 20 A serious medical need exists if the failure to treat the condition could result in further 21 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 22 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 23 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 24 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant 25 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk 26 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted 27 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842. 28 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 1 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a 2 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 3 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 4 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In 5 this regard, “[a] prisoner need not show his harm was substantial; however, such would provide 6 additional support for the inmate’s claim that the defendant was deliberately indifferent to his 7 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at 8 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that 9 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 10 1989) (per curiam). A failure to competently treat a serious medical condition, even if some 11 treatment is prescribed, may constitute deliberate indifference in a particular case. Id. 12 Plaintiff’s allegations also do not state a claim. As the documents attached to the pleading 13 demonstrate, plaintiff was seen by an ophthalmologist three times during the relevant period and 14 at least once by his primary care doctor. While none of these medical professionals was able to 15 determine the cause of plaintiff’s facial pain, their mere failure to diagnose does not amount to a 16 constitutional violation. Before it can be said that a prisoner's civil rights have been abridged 17 regarding medical care, “the indifference to his medical needs must be substantial. Mere 18 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 19 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 20 105-06); see also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere 21 negligence in diagnosing or treating a medical condition, without more, does not violate a 22 prisoner's Eighth Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate 23 indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than 24 ordinary lack of due care for the prisoner's interests or safety.’” Farmer, 511 U.S. at 835. 25 Furthermore, the decision to deny plaintiff’s request for a referral to an ENT specialist suggests 26 only a difference of opinion between himself and medical staff as to the proper course of 27 treatment. This difference, however, cannot serve as the basis of an Eighth Amendment claim. 28 See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez 1 v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 2 1981). 3 Plaintiffs allegations against Dr. Baniga are premised on this Defendant’s role in the 4 denial of treatment for Plaintiff’s hepatitis C. Plaintiff alleges that Dr. Baniga “facilitated a 5 denial” of Plaintiff’s healthcare grievance and that this decision was based “upon unreasonable 6 policies.” These allegations, however, fail to set forth factual details to assess the viability of 7 Plaintiff’s Eighth Amendment claim. Without more, it is impossible for the Court to determine 8 Plaintiff’s claim is based solely on a difference of opinion as to the proper course of treatment for 9 his condition. It is also impossible to discern what role specifically Dr. Baniga played in the 10 provision of medical care for Plaintiff’s hepatitis C and what role institutional regulations played 11 in decisions regarding Plaintiff’s treatment. Accordingly, Plaintiff fails to state a claim against 12 Dr. Baniga. 13 F. Failure to Exhaust 14 Plaintiff admits in the complaint that he did not exhaust his administrative remedies prior 15 to filing this action for fear of retaliation by institutional staff. As discussed infra, Plaintiff is 16 forewarned that his complaint may be subject to a motion for summary judgment for failure to 17 exhaust administrative remedies. 18 Plaintiff’s claims are subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. 19 § 1997e(a). Under the PLRA, “[n]o action shall be brought with respect to prison conditions 20 under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, 21 prison, or other correctional facility until such administrative remedies as are available are 22 exhausted.” 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s 23 exhaustion requirement applies to all prisoners seeking redress for prison circumstances or 24 occurrences”). “[T]hat language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said 25 more conversationally, may not bring any action) absent exhaustion of available administrative 26 remedies.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 27 85 (2006); Jones v. Bock, 549 U.S. 199, 211 (2007)). Dismissal for failure to state a claim is 28 appropriate where “a failure to exhaust is clear on the face of the complaint.” Albino v. Baca, 1 747 F.3d 1162, 1166 (9th Cir. 2014) (defendant may move for dismissal under Rule 12(b)(6) 2 where exhaustion is clear on the face of the complaint); Davis v. Cal. Dep't of Corr. and Rehab., 3 474 Fed. Appx. 606, 607 (9th Cir. 2012) (district court properly dismissed case where it was 4 clear on face of complaint that administrative remedies were not exhausted prior to filing). 5 When the district court concludes that the prisoner has not exhausted administrative 6 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 7 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 8 Albino, 747 F.3d at 1168. 9 The State of California provides its inmates and parolees the right to appeal 10 administratively “any policy, decision, action, condition, or omission by the department or its 11 staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or 12 her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). To exhaust available 13 administrative remedies, a prisoner must proceed through three formal levels of appeal and 14 receive a decision from the Secretary of the CDCR or his designee. Id. § 3084.1(b), § 15 3084.7(d)(3). 16 IV. Conclusion 17 As discussed, Plaintiff’s complaint fails to state a claim. The Court will grant Plaintiff an 18 opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 19 If Plaintiff does not wish to amend, he may instead file a notice of voluntary dismissal, and the 20 action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, 21 Plaintiff may forego amendment and notify the Court that he wishes to stand on his complaint. See 22 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 23 amendment). If the last option is chosen, the Court will issue findings and recommendations to 24 dismiss the complaint without leave to amend, Plaintiff will have an opportunity to object, and the 25 matter will be decided by a District Judge. 26 If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 27 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 28 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 1 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 2 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 3 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 4 on curing the deficiencies set forth above. 5 Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be 6 complete without reference to any prior pleading. As a general rule, an amended complaint 7 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 8 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 9 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 10 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 11 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original 12 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a). 13 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 14 above the speculative level. . .” Twombly, 550 U.S. at 555 (citations omitted). 15 Accordingly, the Court ORDERS: 16 1. Within thirty days from the date of service of this order, Plaintiff must file a first 17 amended complaint curing the deficiencies identified by the Court in this order, a 18 notice of voluntary dismissal, or a notice of election to stand on the complaint. 19 If Plaintiff fails to file a first amended complaint or notice of voluntary dismissal, the 20 Court will recommend the action be dismissed, with prejudice, for failure to obey a court 21 order and failure to state a claim. 22

IT IS SO ORDERED.

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24 Dated: October 31, 2019 /s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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