1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EMMETT JAMES HARRIS, No. 1:20-cv-01521-NONE-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT PLAINTIFF’S

13 v. CLAIM AGAINST DEFENDANT METTS

FOR DELIBERATE INDIFFERENCE TO

14 J. SINGER and DR. METTS, SERIOUS MEDICAL NEEDS PROCEED

PAST SCREENING AND ALL OTHER

15 Defendants. CLAIMS AND DEFENDANTS BE

DISMISSED

16 (ECF No. 11) 17

TWENTY-ONE DAY DEADLINE

18 19 Plaintiff Emmett James Harris (“Plaintiff”) is a state inmate proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the 21 Complaint commencing this action on October 29, 2020. (ECF No. 1). The Court screened that 22 complaint and found Plaintiff stated one cognizable claim but failed to state any others. (ECF No. 23 8). Plaintiff filed a first amended complaint on November 30, 2020, which brings claims 24 concerning his being shot in the eye and subsequent medical treatment. (ECF No. 11). The first 25 amended complaint is before the Court for screening. 26 The Court has reviewed the first amended complaint and finds for screening purposes that 27 it states cognizable claims against Defendant Metts for deliberate indifference to serious medical 28 needs in violation of the Eighth Amendment and that it fails to state any other claims. 1 Plaintiff has twenty-one (21) days from the date of service of these findings and 2 recommendations to file his objections. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by inmates 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 inmate has raised claims that are legally 7 “frivolous or malicious,” that 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)(1), (2). 9 As Plaintiff is proceeding in forma pauperis, the Court may also screen the complaint under 28 10 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 11 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 12 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 18 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 19 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 20 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 21 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 22 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 23 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 24 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 25 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 26 pro se complaints should continue to be liberally construed after Iqbal). 27 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 28 Plaintiff’s first amended complaint alleges as follows: 1 On January 5, 2020, Plaintiff was on the Facility C yard for recreational program. There 2 was an incident of “mutual combat,” which Plaintiff did not participate in. Plaintiff was shot in 3 the left eye by Defendant J. Singer, a correctional officer. Correctional officers are trained not to 4 shoot in the face. Singer subsequently apologized and said he did not intend to shoot Plaintiff in 5 the face. 6 Plaintiff was seen by Defendant Dr. Metts on the day of the shooting. He was not taken to 7 a bone specialist outside of the prison until February. And even then, Plaintiff’s appointment was 8 canceled because Defendant Metts, who is responsible for medical care in the C yard and 9 arranging special medical care and appointments outside the prison, failed to send various 10 medical records to the specialist. Plaintiff’s appointment was never rescheduled, despite 11 Plaintiff’s requests for additional medical attention. 12 On March 10, 2020, Plaintiff went to an outside eye doctor. The doctor informed Plaintiff 13 that Plaintiff lost the vision in his left eye. 14 Plaintiff has not received a follow-up or response from the medical department at the 15 prison. Medical personnel refuse to comply with orders from outside specialists. Not providing 16 Plaintiff with prompt treatment risks permanent damage. 17 III. SECTION 1983 18 The Civil Rights Act under which this action was filed provides: 19 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 20 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 21 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 22 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 23 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 24 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 25 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 26 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 27 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 28 1 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 2 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 3 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 4 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 5 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 6 does an affirmative act, participates in another's affirmative act, or omits to perform an act which 7 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 8 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 9 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 10 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 11 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 12 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 13 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 14 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 15 2008). 16 Additionally, a plaintiff must demonstrate that each named defendant personally 17 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 18 be an actual connection or link between the actions of the defendants and the deprivation alleged 19 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 20 691, 695 (1978). 21 Supervisory personnel are generally not liable under § 1983 for the actions of their 22 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 23 supervisory position, the causal link between him and the claimed constitutional violation must be 24 specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 25 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under 26 § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts that would 27 support a claim that the supervisory defendants either personally participated in the alleged 28 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 1 promulgated or “implement[ed] a policy so deficient that the policy itself is a repudiation of 2 constitutional rights' and is ‘the moving force of the constitutional violation.” Hansen v. Black, 3 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation marks omitted); Taylor v. List, 4 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own 5 culpable action or inaction in the training, supervision, or control of his subordinates,” “his 6 acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that 7 showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 8 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted). 9 IV. ANALYSIS OF PLAINTIFF’S CLAIMS 10 A. Excessive Force 11 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 12 restraints on prison officials, who may not… use excessive physical force against prisoners.” 13 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 14 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry 15 is… whether force was applied in a good-faith effort to maintain or restore discipline, or 16 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 17 When determining whether the force was excessive, the court looks to the “extent of 18 injury suffered by an inmate…, the need for application of force, the relationship between that 19 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ 20 and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 21 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force 22 generally do not implicate the Eighth Amendment, significant injury need not be evident in the 23 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically 24 use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 25 U.S. at 9. 26 Plaintiff alleges Defendant Singer shot him in the eye in connection with a prison fight 27 that Plaintiff was not involved in. Plaintiff also alleges that he has lost vision in his left eye. In its 28 first screening order, the Court informed Plaintiff that he did not provide sufficient details to 1 show that Defendant Singer shot him maliciously and sadistically to cause harm:

2 However, he has not provided any additional details concerning whether the force was applied in a good-faith effort to maintain or restore discipline or not. 3 For instance, Plaintiff has not alleged what occurred prior to Defendant Singer’s actions or any facts to determine why Defendant Singer shot 4 Plaintiff. Moreover, Plaintiff alleges that Defendant Singer apologized and 5 explained that he did not mean to shoot Plaintiff in the face. This fact indicates that Defendant Singer did not shoot Plaintiff to maliciously and 6 sadistically cause harm. 7 (ECF No. 8 at 5). 8 In the first amended complaint, Plaintiff does not add any allegations related to why 9 Defendant Singer shot Plaintiff. Plaintiff continues to allege that Defendant Singer apologized 10 and explained that he did not mean to shoot Plaintiff in the face. Although Plaintiff alleges that he 11 was not part of the fight, this fact alone does not establish that Defendant Singer acted in a 12 malicious and sadistic manner. 13 To the extent Plaintiff alleges that violating prison regulations concerning use of force 14 violates Plaintiff’s Eighth Amendment rights, “a violation of a prison regulation or policy is not a 15 per se constitutional violation.” Brown v. Galvin, No. 2:16-CV-2629-JAM-DB (PC), 2017 WL 16 6611501, at *3 (E.D. Cal. Dec. 27, 2017); accord Hilson v. Arnett, 2017 WL 6209390, at *9 17 (E.D. Cal. Dec. 8, 2017) (same); Case v. Kitsap Cty. Sheriff’s Dep’t, 249 F.3d 921, 930 (9th Cir. 18 2001) (“There is no § 1983 liability for violating prison policy.” (quoting Gardner v. Howard, 19 109 F.3d 427, 430 (8th Cir. 1997)). Therefore, that the shooting may have violated prison policy 20 does not establish a constitutional violation. 21 B. Deliberate Indifference to Serious Medical Needs 22 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 23 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 24 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff 25 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 26 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 27 (2) that “the defendant’s response to the need was deliberately indifferent.” Id. (quoting 28 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations 1 marks omitted), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th 2 Cir. 1997) (en banc)). 3 Deliberate indifference is established only where the defendant subjectively “knows of and 4 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 5 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate 6 indifference can be established “by showing (a) a purposeful act or failure to respond to a 7 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d 8 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high 9 risk of harm that is either known or so obvious that it should be known”) is insufficient to 10 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 11 (1994) (citations omitted). With respect to denial of access of medical care, the Ninth Circuit has 12 held as follows:

13 Under the Eighth Amendment’s standard of deliberate indifference, a person 14 is liable for denying a prisoner needed medical care only if the person “knows of and disregards an excessive risk to inmate health and safety.” Farmer, 511 15 U.S. at 837, 114 S.Ct. 1970. In order to know of the excessive risk, it is not enough that the person merely “be aware of facts from which the inference 16 could be drawn that a substantial risk of serious harm exists, [ ] he must also draw that inference.” Id. . . . [I]f a person is aware of a substantial risk of 17 serious harm, a person may be liable for neglecting a prisoner’s serious 18 medical needs on the basis of either his action or his inaction. Farmer, 511 U.S. at 842, 114 S.Ct. 1970. 19 20 Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1187–88 (9th Cir. 2002) (footnote 21 omitted), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 22 2016). 23 Here, being shot in the eye resulting in blindness is a serious medical condition. Plaintiff 24 alleges that Defendant Metts knew of the risk because Plaintiff alleges that Defendant Metts was 25 responsible for setting appointments with outside doctors and Plaintiff has been scheduled at least 26 twice to see outside doctors. Reading Plaintiff’s complaint liberally, Plaintiff also alleges outside 27 doctors have recommended he receive additional care that he has not been provided. He further 28 alleges one of his appointments was canceled, and never rescheduled, due to the doctors not 1 | receiving his medical records. Based on these allegations, the Court finds that Plaintiff has stated 2 | aclaim for deliberate indifference to medical needs against Defendant Metts for screening 3 || purposes. 4] V. RECOMMENDATION AND ORDER 5 The Court has screened Plaintiff's first amended complaint and finds that it states 6 | cognizable claims against Defendant Metts for deliberate indifference to Plaintiffs serious 7 | medical needs in violation of the Eighth Amendment and fails to state any other claims. 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. This case proceed on Plaintiff's claims against Defendant Metts for deliberate 10 indifference to serious medical needs in violation of the Eighth Amendment; and 11 2. All other claims and defendants in Plaintiff's First Amended Complaint be dismissed, 12 with prejudice. 13 These findings and recommendations will be submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 15 | (21) days after being served with these findings and recommendations, Plaintiff may file written 16 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 || Findings and Recommendations.” 18 Plaintiff is advised that failure to file objections within the specified time may result in the 19 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 20 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21

IT IS SO ORDERED.

23 Dated: _ December 3, 2020 [sl ee ey

UNITED STATES MAGISTRATE JUDGE

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