1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TRAYDEL MIGUEL TUCKER, Case No. 20-cv-01255-WHO Plaintiff, 8

ORDER OF DISMISSAL

v. 9 Re: Dkt. Nos. 13, 14 10 R. DAY, et al., Defendants. 11 12 13 INTRODUCTION 14 Plaintiff Traydel Tucker brings this suit because he was injured in a prison vehicle 15 transport accident. I previously dismissed his complaint for failure to state a claim, Dkt. 16 No. 12 (the “Prior Order”), and now review his first amended complaint (“FAC”). 17 As I explained in the Prior Order, claims of negligence, such as one for negligent 18 driving, are not actionable under section 1983. I gave Tucker leave to amend and 19 informed him that he must allege more than negligence on the part of Sergeant Day and 20 that he must identify direct participation in the alleged wrong by every other defendant. 21 Tucker’s FAC fails to meet these requirements. All he alleges against Sergeant R. 22 Day and Officer D. Naravette is that they were negligent. In addition, Tucker fails to 23 identify any wrongdoing by Warden T. Foss and “Phys. Tech.” Mayder. Because Tucker 24 has again not stated a cognizable claim for relief, and failed to dos so after specific 25 direction, I dismiss the FAC with prejudice. 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 6 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 8 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 12 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 13 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 14 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 15 (9th Cir. 1994). 16 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 17 elements: (1) that a right secured by the Constitution or laws of the United States was 18 violated, and (2) that the alleged violation was committed by a person acting under the 19 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 20 B. Legal Claims 21 Tucker alleges that he suffered injuries from an August 30, 2019 vehicle accident 22 caused by the negligent actions of R. Day (“Sergeant Day”) and D. Naravette (“Officer 23 Naravette”), prison guards at Salinas Valley State Prison. (See generally, Dkt. No. 13 24 (“FAC”).) Tucker also names Warden T. Foss (“Warden Foss”) and “Phys. Tech.” 25 Mayder (“P.T. Mayder”) as defendants. (See id.) I will first will explain why Tucker fails 26 to state a claim against Sergeant Day and Officer Naravette, then P.T. Mayder, and finally 27 Warden Foss. 1 1. Sergeant Day and Officer Naravette 2 Tucker alleges that Sergeant Day and Officer Naravette were assigned to transfer 3 him from one administrative segregation unit to another at Salinas Valley State Prison. 4 (FAC at 3.) To effect this transfer, Sergeant Day placed Tucker in a transport van. (Id.) 5 Neither Sergeant Day nor Officer Naravette buckled Tucker’s seatbelt. (Id.) Sergeant Day 6 told Tucker, “you . . . will be alright, we’re only going a short distance, so just sit back and 7 relax.” (Id.) Tucker wore leg restraints and waist/hand restraints. (See id.) 8 Tucker alleges that Sergeant Day began to accelerate “exceedingly rapid[ly].” (Id.) 9 After the van was in motion, it “unevenly came upon a ‘wheelchair ramp,’” which 10 “caus[ed] the van to tilt to the left.” (Id.) This leftward tilt, in turn, caused Tucker to be 11 “jolted from his seat.” (Id.) Tucker hit the ceiling and the left panel of the van, and fell to 12 the floor. (See id.) Another prisoner being transported in the van “landed on top” of 13 Tucker as the van stopped. (Id. at 5.) When the other prisoner “tr[ied] to get off” Tucker, 14 he put pressure on Tucker and caused him further pain. (See id.) 15 Upon striking the wheelchair ramp, Sergeant Day and Officer Naravette “both 16 yell[ed] out, ‘are you guys alright?’” (Id.) Once the van stopped, Sergeant Day assured 17 Tucker he would be taken to medical staff and “immediately started apologizing for the 18 accident.” (Id.) Sergeant Day then took Tucker to see medical staff and spoke to medical 19 staff outside Tucker’s presence for a few minutes. (See id.) 20 The FAC fails because Tucker does not allege that Sergeant Day or Officer 21 Naravette caused Tucker’s injuries with deliberate indifference; that is necessary to state 22 an Eighth Amendment, as I explained in the Prior Order. See Dkt. No. 12 at 3 (citing 23 Farmer v. Brennan, 511 U.S. 825, 835-37 & n.4 (1994); Estelle v. Gamble, 429 U.S. 97, 24 104 (1976).) The United States Supreme Court has clarified that “it is obduracy and 25 wantonness, not inadvertence or error in good faith, that characterize the conduct 26 prohibited by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986). A 27 mere accident or evaluative mistake is not to be characterized as wanton infliction of 1 The failure to buckle Tucker’s seatbelt is not enough, by itself, to constitute 2 deliberate indifference. Although there is no published Ninth Circuit decision on this 3 issue, the Eighth and Second Circuits have held that an injury caused by the lack of a 4 seatbelt does not state an Eighth Amendment claim. See Stark v. Lee Cty., IA, No. 20- 5 1606, 2021 WL 1287743, at *2 (8th Cir. Apr. 7, 2021); Jabbar v. Fischer, 683 F.3d 54, 57- 6 59 (2d Cir. 2012); Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 906 (8th Cir. 7 1999). In those cases, the conduct of defendants’ conduct was far more questionable than 8 that of Sergeant Day and Officer Naravette. For example, in Stark, the defendant 9 “engaged in a chase . . . with the shackled-but-not-seat-belted [plaintiff] in the backseat.” 10 2021 WL 1287743, at *2. In Jabbar, the plaintiff’s seatbelt was not buckled although the 11 plaintiff was being transported to an off-site medical facility, and plaintiff was injured 12 when he was thrown from his seat by a “forceful turn” on city streets. Jabbar, 683 F.3d at 13 56. Likewise, in Spencer, the plaintiff’s seatbelt was not buckled although he was being 14 transported on city streets and was intoxicated and unable to maintain his balance. 183 15 F.3d at 904. 16 Similarly, district courts within this Circuit also have dismissed complaints where 17 the plaintiff’s seatbelt was not buckled, even where the defendants’ conduct was more 18 culpable than Sergeant Day’s or Officer Naravette’s, because there was no showing that 19 the officers drove in a reckless manner, had prior accidents, or otherwise “appreciated the 20 high degree of risk” posed to the plaintiff. See Rich v. Ahern, No. 18-CV-06267-EMC, 21 2019 WL 2744831, at *3 (N.D. Cal. July 1, 2019) (explaining that more than an absent 22 seatbelt is necessary, although van was traveling on city streets) (citing cases); Dkt. No. 23 24, McCardie v. Ahern. No. 20-CV-1408-EMC (N.D. Cal. Jan. 26, 2021) (pretrial detainee 24 showed only negligence accompanying the lack of a seatbelt); Dkt. No. 18, Pace v. 25 Gardner, No. 20-CV-0717-RS (N.D. Cal. Jan. 26, 2021) (same); Simon v. Clements, No. 26 CV1504925JLSPLA, 2016 WL 8729781, at *1 (C.D. Cal. June 10, 2016) (defendant was 27 speeding on city streets and suddenly slammed on the brakes); Bulkin v. Ochoa, No. 1:13- 1 alleged to have driven recklessly). In light of this precedent, Tucker cannot state a claim 2 based on the lack of a seatbelt alone. 3 Further, Tucker’s allegations make clear that his injury was caused by an 4 “accident,” not an intentional act. Tucker was not injured when Sergeant Day accelerated 5 “exceedingly rapid[ly]” but instead was injured when Sergeant Day struck the wheelchair 6 ramp. (See id.) By Tucker’s own admission, the striking of the wheelchair ramp was an 7 “accident.” (Id.) That this was an accident is further confirmed by Sergeant Day’s and 8 Officer Naravette’s actions directly following the accident: both officers immediately 9 asked if the prisoners were “alright,” apparently with concern as this inquiry was “yell[ed] 10 out”; Sergeant Day “immediately started apologizing”; and Tucker was immediately taken 11 to medical staff. (Id.) Accidentally causing an injury does not rise to the level of 12 deliberate indifference. 13 Further amendment of this claim would be futile. Tucker cannot allege in a future 14 amended complaint that the striking of the wheelchair ramp was intentional, or that he was 15 injured by Sergeant Day’s driving and not by the striking of the wheelchair ramp, because 16 this would conflict with the allegations of the FAC. Where “[i]t would not be possible” for 17 a plaintiff to state a claim on amendment “without contradicting any of the allegations of 18 his original complaint,” courts find that amendment would be futile. Reddy v. Litton 19 Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) (holding that district court did not abuse 20 discretion by dismissing with prejudice, where complaint could not truthfully be amended 21 to state a claim); see also Heisen v. Pac. Coast Bldg. Prod., Inc., 26 F.3d 130 (9th Cir. 22 1994) (same). Moreover, I already gave Tucker the chance to allege deliberate 23 indifference by defendants and instructed him how to do so in the Prior Order. (See Dkt. 24 No. 12.) Where a plaintiff is unable to remedy a deficiency despite a warning with clear 25 instructions and an opportunity to amend, courts may conclude that further leave to amend 26 would be futile. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (a 27 court may conclude that amendment would be futile where plaintiff has previously 1 For these reasons, I conclude that Tucker fails to plead a viable Eighth Amendment 2 claim against either Sergeant Day or Officer Naravette in the FAC, and that amendment 3 would be futile. His claim as to these defendants is dismissed with prejudice.1 4 2. P.T. Mayder 5 Tucker names P.T. Mayder as a defendant in the FAC but does not expressly allege 6 that P.T. Mayder performed any action. (See generally, FAC.) In an abundance of 7 caution, the Court assumes that the unnamed “phys tech” who treated Tucker was P.T. 8 Mayder. (See id. at 7 (stating Tucker was treated by “a phys tech”).) 9 Tucker fails to allege that P.T. Mayder took any wrongful action, much less violated 10 Tucker’s Eighth Amendment rights. Instead, Tucker alleges that the phys tech provided 11 Tucker with ibuprofen for pain following the accident and said that Tucker would “be seen 12 by a doctor.” (Id.) Tucker does not allege that the phys tech failed to refer Tucker to a 13 doctor for an examination or that the ibuprofen was insufficient to address Tucker’s pain at 14 that moment. (See id.) Indeed, Tucker does not even allege that the phys tech was legally 15 permitted to administer anything stronger than ibuprofen before Tucker was seen by a 16 doctor. Cf. Cal. Bus. & Prof. Code § 3502.1(c) (“The [physician assistant] shall furnish or 17 order drugs or devices under physician and surgeon supervision.”) (emphasis added). 18 According to Tucker’s own allegations, the phys tech assisted Tucker when he treated 19 Tucker for pain following the accident. Tucker fails to state a claim. 20 It would be futile to allow Tucker to amend his Eighth Amendment claim as to P.T. 21 Mayder. It is apparent on the face of the FAC that the phys tech assisted Tucker rather 22 than caused him injury. Tucker cannot add allegations of deliberate indifference by phys 23 tech in a future amended complaint without contradicting the allegations of the FAC. 24 Because Tucker cannot truthfully cure the FAC’s defects, I may properly conclude that 25

26 1 I note that this decision would not bar Tucker from pursuing a state-law negligence claim against Sergeant Day or Officer Naravette in state court, following compliance with 27 California’s Tort Claims Act. See Cal. Gov’t Code §§ 905.2 et. seq. (explaining the Tort 1 amendment would be futile. See Reddy, 912 F.2d at 296; Heisen, 26 F.3d at 130. 2 For these reasons, I dismiss Tucker’s Eighth Amendment claim against P.T Mayder 3 with prejudice. 4 3. Warden Foss 5 I previously cautioned Tucker both that defendants cannot be held liable for a 6 constitutional violation under 42 U.S.C. § 1983 unless they were integral participants in 7 the unlawful conduct and that supervisory defendants are not responsible simply because 8 they are supervisors. (See Dkt. No. 12 at 3-4 (citing Keates v. Koile, 883 F.3d 1228, 1241 9 (9th Cir. 2018); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).) Despite this caution, 10 the FAC contains no allegations that Warden Foss was involved in the accident or in 11 Tucker’s medical care. (See generally, FAC.) Accordingly, Tucker fails to show that 12 Warden Foss was an integral participant in the allegedly wrongful conduct. Instead, he 13 appears to name Warden Foss as a defendant on the basis of Warden Foss’s status as a 14 supervisor. 15 It would be futile to allow Tucker to amend his Eighth Amendment claim against 16 Warden Foss; I already gave Tucker a chance to allege that Warden Foss was an integral 17 participant in the alleged wrongs, but he failed to do so. See Allen, 911 F.2d at 373. He 18 cannot add such an allegation in a future amended complaint without contradicting the 19 allegations of the FAC. Although Tucker identifies various officers and staff as being 20 present on the day of the accident and responsible for his injuries, none of them was 21 Warden Foss. (See generally, FAC.) It is appropriate to conclude that amendment would 22 be futile where a plaintiff cannot truthfully cure the defects of a complaint. See Reddy, 912 23 F.2d at 296; Heisen, 26 F.3d at 130. 24 For these reasons, I dismiss Tucker’s Eighth Amendment claim against Warden 25 Foss with prejudice. 26 CONCLUSION 27 This federal civil rights suit is DISMISSED with prejudice for failure to state a 1 The Clerk shall terminate all pending motions, enter judgment in favor of 2 defendants, and close the file. 3 IT IS SO ORDERED. . 4 || Dated: April 9, 2021 \f C0 ®

ILLIAM H. ORRICK

6 United States District Judge 7 8 9 10 11 a 12

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