1 2 3 4 5 6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

8 9 KYLE MALBRUE, Case No. CV 20-5888-DOC (AS) 10

Plaintiff, 11

ORDER DISMISSING COMPLAINT

v. 12

WITH LEAVE TO AMEND

JAMES MORALES, et al., 13

Defendants. 14

15 16 INTRODUCTION 17 18 On June 25, 2020, Kyle Malbrue (“Plaintiff”), a California 19 inmate proceeding pro se, filed a Civil Rights Complaint 20 (“Complaint”) pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). The 21 Court has screened the Complaint as prescribed by 28 U.S.C. § 1915A 22 and 42 U.S.C. § 1997e. For the reasons discussed below, the Court 23 DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.1 24 25 26 1 Magistrate judges may dismiss a complaint with leave to 27 amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 28 1 PLAINTIFF’S COMPLAINT 2 3 Plaintiff claims that the following four Defendants, sued in 4 their individual and official capacities, violated Plaintiff’s 5 Eighth Amendment rights at California State Prison – Los Angeles 6 County (“CSP-LAC”) in Lancaster, California: (1) correctional 7 officer James Morales, (2) correctional officer Daniel Chavez- 8 Vasques, (3) correctional officer James Alvarado, and (4) licensed 9 psychiatric technician T. Lundgren. (Complaint at 3-6).2 He seeks 10 monetary relief. (Id. at 7). 11 12 Plaintiff alleges that on September 8, 2019, he was 13 approaching the medication window for his scheduled dose when 14 Officer Morales confronted him and began making “disrespectful 15 sexual comments.” (Id. at 5). Plaintiff and Morales started 16 arguing, which continued after Plaintiff took his medication. 17 (Id.). Plaintiff states that he then told Morales he “would be 18 making a complaint,” and started walking away. (Id.). At that 19 point, according to Plaintiff, Morales “charged” into Plaintiff 20 from behind, causing Plaintiff to hit his head on the concrete. 21 (Id.). Plaintiff alleges that Morales began punching Plaintiff in 22 the face and head, and he sounded the institutional alarm, 23 summoning Officer Chavez-Vasquez and Officer Alvarado, who joined 24 in by punching and kicking Plaintiff. (Id.). Plaintiff alleges 25 26

27 2 Citations to the Complaint refer to the page numbers assigned by the Court’s electronic case filing system (CM/ECF). 28 1 that the officers then grabbed his arms, handcuffed him, and 2 continued striking him. (Id.). 3 4 Plaintiff was sent to the hospital and treated for injuries 5 to his face, head, eye, and wrist. (Id. at 5-6). According to 6 Plaintiff, he later returned to the prison to find that the 7 officers, in an effort to “cover up” their own misconduct, had 8 falsely accused him of battery on the staff. (Id. at 6). Plaintiff 9 alleges that he was “also denied a[n] excessive force videotape 10 interview on the date of the incident,” and had to file an appeal 11 to obtain the interview. (Id.). 12 13 Plaintiff additionally alleges that Lundgren, a licensed 14 psychiatric technician, denied “medical treatment” to Plaintiff, 15 falsely claiming that Plaintiff had refused the treatment “by 16 writing ‘Naw, I’m good’” on a form. (Id.). Lundgren was then 17 overruled by a supervisor after Plaintiff continued to complain of 18 his injuries. (Id.). 19 20 STANDARD OF REVIEW 21 22 Congress mandates that district courts initially screen civil 23 complaints filed by prisoners seeking redress from a governmental 24 entity or employee. 28 U.S.C. § 1915A. A court may dismiss such 25 a complaint, or any portion thereof, if the court concludes that 26 the complaint: (1) is frivolous or malicious, (2) fails to state a 27 claim upon which relief may be granted, or (3) seeks monetary 28 relief from a defendant who is immune from such relief. Id. 1 § 1915A(b); see also id. § 1915(e)(2) (The court “shall dismiss 2 the case at any time if the court determines that . . . the 3 action . . . (i) is frivolous or malicious; (ii) fails to state a 4 claim on which relief may be granted; or (iii) seeks monetary 5 relief against a defendant who is immune from such relief.”); 6 accord Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) 7 (en banc). In addition, dismissal may be appropriate if a complaint 8 violates Rule 8 of the Federal Rules of Civil Procedure. McHenry 9 v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast 10 Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 11 12 In considering whether to dismiss a complaint, a court is 13 generally limited to the pleadings and must construe “[a]ll factual 14 allegations set forth in the complaint . . . as true and . . . in 15 the light most favorable” to the plaintiff. Lee v. City of Los 16 Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). 17 Moreover, pro se pleadings are “to be liberally construed” and 18 “held to less stringent standards” than those drafted by a lawyer. 19 Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted). 20 Nevertheless, dismissal for failure to state a claim can be 21 warranted based on either the lack of a cognizable legal theory or 22 the absence of factual support for a cognizable legal theory. 23 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 24 Cir. 2008). 25 26 27 28 1 DISCUSSION 2 3 Plaintiff’s Complaint warrants dismissal due to the 4 deficiencies discussed below. Leave to amend is granted, however, 5 because it is not “absolutely clear that the deficiencies of the 6 complaint could not be cured by amendment.” Akhtar v. Mesa, 698 7 F.3d 1202, 1212 (9th Cir. 2012). 8 9 First, while Plaintiff purports to sue every Defendant in both 10 their individual and official capacities (Complaint at 3-4), he 11 fails to state any official-capacity claim. Official-capacity 12 suits provide “another way of pleading an action against an entity 13 of which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 14 436 U.S. 658, 690 n.55 (1978). Because Defendants are employed or 15 contracted by CDCR, claims against them in their official 16 capacities are effectively claims against the State of California. 17 Kentucky v. Graham, 473 U.S. 159, 165 (1985) (official-capacity 18 suits “generally represent only another way of pleading an action 19 against an entity of which an officer is an agent”); Community 20 House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 966–67 (9th Cir. 21 2010) (an official capacity suit is treated as a suit against the 22 entity). To state a claim against a state officer in his or her 23 official capacity, Plaintiff must identify a custom, policy, or 24 practice of the state or prison that is responsible for the conduct 25 alleged in the Complaint.3 See Gomez v. Vernon, 255 F.3d 1118, 26 3 Even if the Complaint stated official-capacity claims, only 27 declaratory or injunctive relief would be available for such claims. The Eleventh Amendment bars suits for damages against 28 1 1127 (9th Cir. 2001) (state prison administrators sued for 2 injunctive relief were “liable in their official capacities only 3 if policy or custom played a part in the violation of federal 4 law”); Tyson v. Ratelle, 166 F.R.D. 442, 446 (C.D. Cal. 1996) (“To 5 warrant injunctive relief under Section 1983, . . . there must be 6 an affirmative link or a causal relationship between the 7 constitutional deprivation and the adoption of a policy, express 8 or implied, showing the official’s authorization or approval of 9 the conduct leading to the constitutional deprivation.” (citing 10 Rizzo v. Goode, 423 U.S. 362, 371 (1976))). Plaintiff fails to 11 allege any facts demonstrating that his harms resulted from any 12 policy, practice, or custom of the State of California or its 13 agencies. 14 15 Second, Plaintiff fails to state any claim against Defendant 16 Lundgren. Plaintiff claims Lundgren, a licensed psychiatric 17 technician, violated the Eighth Amendment through deliberate 18 indifference by denying “medical care” to Plaintiff, and falsely 19 claiming that Plaintiff had refused treatment. (Complaint at 6). 20 To establish an Eighth Amendment deliberate indifference claim, a 21 prisoner must show (1) that the deprivation suffered was 22 “objectively, sufficiently serious” (i.e., the objective 23 component), and (2) that prison officials were deliberately

24 states and their official arms. Howlett v. Rose, 496 U.S. 356, 25 365 (1990); Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (“The State of California has not waived its Eleventh 26 Amendment immunity with respect to claims brought under § 1983 in federal court, and the Supreme Court has held that § 1983 was not 27 intended to abrogate a State’s Eleventh Amendment immunity.”) (citation omitted). 28 1 indifferent to his safety in allowing the deprivation to take place 2 (i.e., the subjective component). Morgan v. Morgensen, 465 F.3d 3 1041, 1045 (9th Cir. 2006). A plaintiff can satisfy the objective 4 component of the deliberate indifference standard by demonstrating 5 that a failure to treat the plaintiff’s condition could result in 6 further significant injury or the unnecessary and wanton infliction 7 of pain. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 8 2014). A plaintiff can satisfy the subjective component of the 9 deliberate indifference standard by showing that a prison official 10 “knows of and disregards an excessive risk to inmate health and 11 safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 12 A jail official must “both be aware of facts from which the 13 inference could be drawn that a substantial risk of serious harm 14 exists, and he must also draw the inference.” Farmer v. Brennan, 15 511 U.S. 825, 837 (1994). 16 17 Here, Plaintiff’s vague allegations against Lungren fail to 18 demonstrate either the objective or subjective components of the 19 claim. First, because Plaintiff does not specify what “medical 20 treatment” Lundgren refused to provide, or for what particular 21 injuries, he does not demonstrate any objectively serious harm. 22 Moreover, because Plaintiff states that Lundgren’s supervisor 23 “overruled” Lundgren’s decision, it is unclear whether any harm at 24 all resulted from Lundgren’s actions. (See Complaint at 6). 25 Second, Plaintiff fails to allege any facts showing that Lundgren 26 was actually aware of Plaintiff’s injuries and the need for 27 treatment. As such, Plaintiff fails to demonstrate that Lundgren 28 1 was deliberately indifferent in violation of Plaintiff’s Eighth 2 Amendment rights. 3 4 CONCLUSION 5 6 For the reasons discussed above, the Court DISMISSES 7 Plaintiff’s claims WITH LEAVE TO AMEND. 8 9 If Plaintiff still wishes to pursue this action, he shall file 10 a First Amended Complaint no later than 30 days from the date of 11 this Order. The First Amended Complaint must cure the pleading 12 defects discussed above and shall be complete in itself without 13 reference to the Complaint. See L.R. 15-2 (“Every amended pleading 14 filed as a matter of right or allowed by order of the Court shall 15 be complete including exhibits. The amended pleading shall not 16 refer to the prior, superseding pleading.”). This means that 17 Plaintiff must allege and plead any viable claims in the Complaint 18 again. 19 20 In any amended complaint, Plaintiff should identify the nature 21 of each separate legal claim and confine his allegations to those 22 operative facts supporting each of his claims. For each separate 23 legal claim, Plaintiff should state the civil right that has been 24 violated and the supporting facts for that claim only. Pursuant 25 to Federal Rule of Civil Procedure 8(a), all that is required is a 26 “short and plain statement of the claim showing that the pleader 27 is entitled to relief.” However, Plaintiff is advised that the 28 allegations in the First Amended Complaint should be consistent 1 with the authorities discussed above. In addition, the First 2 Amended Complaint may not include new defendants or claims not 3 reasonably related to the allegations in the previously filed 4 complaint. Plaintiff is strongly encouraged to utilize the 5 standard civil rights complaint form when filing any amended 6 complaint, a copy of which is attached. 7 8 Plaintiff is explicitly cautioned that failure to timely file 9 a First Amended Complaint, or failure to correct the deficiencies 10 described above, may result in a recommendation that this action, 11 or portions thereof, be dismissed with prejudice for failure to 12 prosecute and/or failure to comply with court orders. See Fed. R. 13 Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 14 884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually 15 to respond to the court’s ultimatum - either by amending the 16 complaint or by indicating to the court that it will not do so - 17 is properly met with the sanction of a Rule 41(b) dismissal.” 18 (emphasis omitted; quoting Edwards v. Marin Park, Inc., 356 F.3d 19 1058, 1065 (9th Cir. 2004))). Plaintiff is further advised that 20 if he no longer wishes to pursue this action in its entirety or 21 with respect to particular defendants or claims, he may voluntarily 22 dismiss all or any part of this action by filing a Notice of 23 Dismissal in accordance with Federal Rule of Civil Procedure 24 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 25 convenience. 26 27 28 1 IT IS SO ORDERED. 2 3 Dated: August 11, 2020 ______________/s/_____________ 4 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28