Mark R. Frisby v. The State of California Department of Justice

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA | MARK R. FRISBY, Case No. 5:19-cv-01249-DSF (MAA) 12 Plaintiff, MEMORANDUM DECISION AND 13 vy. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND M4 THE STATE OF CALIFORNIA || DEPARTMENT OF JUSTICE, 16 Defendant.

19 | I. INTRODUCTION 20 On July 8, 2019, Plaintiff Mark. R. Frisby (“Plaintiff”), proceeding pro se, | filed a Complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 || (“Section 1983”). (Compl., ECF No. 1.) The Court has screened the Complaint as || prescribed by 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). For the reasons || stated below, the Complaint is DISMISSED WITH LEAVE TO AMEND.

25 || Plaintiff is ORDERED to, within thirty days after the date of this Order, either: || (1) file a First Amended Complaint, or (2) advise the Court that Plaintiff does not || intend to file a First Amended Complaint.

28 | /// 1] 0. ALLEGATIONS IN THE COMPLAINT 2 The Complaint is filed against The State of California Department of Justice, || in its official capacity (“DOJ” or “Defendant”). (Compl. 3.)!

4 The Complaint and attached exhibits” contain the following allegations and || claims: Defendant subjected Plaintiff to extended periods of isolation and abuse in || an attempt to elicit a confession from Plaintiff. (Id. at 56.) Specifically, || Defendant denied Plaintiff clothing, showers, hygiene products, food, and sleep.

8 || Ud. at 5, 18.) Plaintiff was held in his cell “without being let out once and often for | up to three days without water for over 100 days straight.” (/d. at 18.)

10 In addition, Defendant “made threats of sexual assault and genital mutilation” || to Plaintiff. (/d. at 5.) An unnamed jail-based treatment employee sexually || harassed Plaintiff. Ud. at 12.) County jail psychiatrist Ruiz “ordered that [Plaintiff] || be kept naked in his cell for months at a time and constantly threatened [Plaintiff] || with genital mutillation [sic].” (Jd. at 18.)

15 Defendant also misdiagnosed Plaintiff with multiple mental illnesses. (Id. at || 5.) Plaintiff“was wrongfully accused of having a deteriorating mental state and || was subject to misdiagnosis by state employees... .” (Id. at 12.) Plaintiff suffered || threats of false medication and recommendations to a state mental institution. (id.) 19 Finally, Defendant denied Plaintiff an attorney, access to reading and writing || material, and legal resources. (Id. at 5, 12.)

22 || ' Citations to pages in docketed documents reference those generated by CM/ECF. |. Documents attached to a complaint are part of the complaint and may be || considered in determining whether the plaintiff can prove any set of facts in support || of the claim. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

26 || Attached to the Complaint as “evidence in support of Civil Rights Complaint” are || Plaintiff's state Petition for Writ of Habeas Corpus and evidence in support thereof. (See Compl. 9-120.) From these attachments, the Court summarizes only allegations that potentially are relevant to Plaintiff's Section 1983 claims.

1 Based on these allegations, Plaintiff asserts the following claims: (1) right to || remain silent; (2) right to an attorney; (3) right to a fair trial; (4) rights to life, |) liberty, and the pursuit of happiness; (5) Eighth Amendment; (6) Fifth Amendment; || and (7) First Amendment. (dd. at 5.)

5 Plaintiff seeks the following remedies: (1) reversal of his conviction; || (2) monetary compensation ($200 million for lost wages and $1 billion for sexual || harassment); and (3) $200 million in punitive damages. (Jd. at 6.)

9) I. LEGAL STANDARD 10 Federal courts must conduct a preliminary screening of any case in which a || prisoner seeks redress from a governmental entity or officer or employee of a | governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma || pauperis (28 U.S.C. § 1915(e)(2)(B)). The court must identify cognizable claims | and dismiss any complaint, or any portion thereof, that is: (1) frivolous or malicious, || (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary | relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), |} 1915(e)(2)(B).

18 When screening a complaint to determine whether it fails to state a claim || upon which relief can be granted, courts apply the Federal Rule of Civil Procedure || 12(6)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 || (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); | Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) || standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). “Dismissal under Rule 12(b)(6) is || appropriate only where the complaint lacks a cognizable legal theory or sufficient || facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & || Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela || Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).

28 || /// 1 Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure || 8(a) (“Rule 8”), “which requires not only ‘fair notice of the nature of the claim, but || also grounds on which the claim rests.” See Li v. Kerry, 710 F.3d 995, 998 (9th || Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)). In || reviewing a motion to dismiss, the court will accept the plaintiff's factual || allegations as true and view them in the light most favorable to the plaintiff. Park | v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Although “detailed factual || allegations” are not required, “[t]hreadbare recitals of the elements of a cause of || action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, || 556 U.S. 662, 678 (2009). “Conclusory allegations of law . . . are insufficient to || defeat a motion to dismiss.” Park, 851 F.3d at 918 (alteration in original) (quoting || Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001)). Rather, a complaint || must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief || that is plausible on its face.’” Igbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 15 || 570). “A claim has facial plausibility when the plaintiff pleads factual content that || allows the court to draw the reasonable inference that the defendant is liable for the || misconduct alleged.” Jgbal, 556 U.S. at 663. “If there are two alternative || explanations, one advanced by defendant and the other advanced by plaintiff, both || of which are plausible, plaintiffs complaint survives a motion to dismiss under || Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Plaintiff's || complaint may be dismissed only when defendant’s plausible alternative || explanation is so convincing that plaintiffs explanation is implausible.” Id. 23 Where a plaintiff is pro se, particularly in civil rights cases, courts should || construe pleadings liberally and afford the plaintiff any benefit of the doubt.

25 || Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “[B]efore dismissing a || pro se complaint the district court must provide the litigant with notice of the || deficiencies in his complaint in order to ensure that the litigant uses the opportunity || to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) || (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). A court should || grant a pro se plaintiff leave to amend a defective complaint “unless it is absolutely || clear that the deficiencies of the complaint could not be cured by amendment.”

4 || Akhtar, 698 F.3d at 1212 (quoting Shucker v. Rockwood, 846 F.2d 1202, 1203-04 || (Oth Cir. 1988) (per curiam)).

7] IV. DISCUSSION 8 A. The Complaint Does Not Name Any Proper Defendants.

9 The Complaint is brought only against Defendant DOJ in its official capacity.

10 || (Compl. 3.) As a state agency, Defendant DOJ is not a “person” subject to liability || under Section 1983. Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004). In || addition, state agencies are protected by the Eleventh Amendment from suits for || money damages, Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), unless the || state waives Eleventh Amendment immunity or Congress abrogates it, Douglas v. || Cal. Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001). “The State of || California has not waived its Eleventh Amendment immunity with respect to claims || brought under § 1983 in federal court, and the Supreme Court has held that § 1983 || was not intended to abrogate a State’s Eleventh Amendment immunity.” Brown v. || Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009). Accordingly, Defendant | DOJ is not a proper defendant, and must be omitted from any amended complaint.

21 In any amended Complaint, Plaintiff must identify the specific Defendants— || other than the DOJ—allegedly responsible for violating Plaintiff's federal or || Constitutional rights. Plaintiff must specify the capacity in which each Defendant || is sued. To the extent a Defendant is sued in his or her official capacity, he or she || only can be sued for prospective declaratory and injunctive relief, not money || damages. See Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1036 (9th || Cir. 1999) (“Ex Parte Young provided a narrow exception to Eleventh Amendment || immunity for certain suits seeking declaratory and injunctive relief against || unconstitutional actions taken by state officers in their official capacities.”) In || addition, Plaintiff must provide specific factual detail regarding each Defendant’s || acts and omissions that allegedly violated Plaintiffs federal or Constitutional rights.

4 || “[L]abels and conclusions,” “a formulaic recitation of the elements of a cause of || action,” and “naked assertion[s]’ devoid of ‘further factual enhancement’” are || insufficient. Igbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

7 || Sufficient detail must be provided to give each Defendant fair notice of Plaintiff's | claim against him or her. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. || 1996) (affirming dismissal under Rule 8 where “one cannot determine from the || complaint who is being sued, for what relief, and on what theory, with enough || detail to guide discovery.”). In any amended complaint, Plaintiff should omit any || Defendant for whom Plaintiff cannot provide specific factual allegations regarding || his or her acts or omissions.

15 B. Plaintiff Cannot Challenge His Conviction Under Section 1983.

16 “Federal law opens two main avenues to relief on complaints related to || imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, anda complaint || under [Section 1983]. Challenges to the validity of any confinement or to || particulars affecting its duration are the province of habeas corpus; requests for || relief turning on circumstances of confinement may be presented in a § 1983 |) action.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (citations || omitted). A Section 1983 complaint must be dismissed pursuant to Heck v. || Humphrey if judgment in favor of the plaintiff would undermine the validity of his || conviction or sentence, unless the plaintiff can demonstrate that the conviction or || sentence already has been invalidated, either through state litigation or federal writ || of habeas corpus. 512 U.S. 477, 486-87 (1994). “[A] state prisoner’s § 1983 || action is barred (absent prior invalidation)—no matter the relief sought (damages or || equitable relief), no matter the target of the prisoner’s suit (state conduct leading to || conviction or internal prison proceedings)—if success in that action would || necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. || Dotson, 544 U.S. 74, 81-82 (2005).

4 Here, Plaintiff explicitly seeks reversal of his conviction on grounds that it |) was obtained illegally. (Compl. 6.) As stated, supra Section II n.2, attached to the || Complaint as “evidence in support of Civil Rights Complaint” are Plaintiff's state || Petition for Writ of Habeas Corpus and evidence in support thereof. (See id. at 9— || 120.) The Complaint states that Plaintiff has filed and is awaiting a response to his || writ of habeas corpus challenging the conviction associated with the Complaint.

10 || Ud. at 2.) As Plaintiffs conviction has not been set aside or reversed, Heck bars || any claims challenging the validity of Plaintiff's conviction. See Washington v. | L.A. Cty. Sheriff's Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016) (“[A]s with | affirmative defenses, a court may properly dismiss a Heck-barred claim under Rule || 12(b)(6) if there exists an ‘obvious bar to securing relief on the face of the || complaint.’”) (quoting ASARCO, LLC v. Union Pac. R.R., 765 F.3d 999, 1004 (9th || Cir. 2014)). The Heck-barred claims include: (1) the right to remain silent/Fifth || Amendment, (2) right to an attorney, (3) right to a fair trial, and (4) the request to || reverse Plaintiffs conviction. These claims should not be included in any amended || complaint. Plaintiff also should refrain from attaching his Petition for Writ of || Habeas Corpus and supporting evidence to any amended complaint, and instead || should include relevant allegations from such documents in the amended complaint.

23 C. The Complaint Does Not State a Cognizable Section 1983 Claim.

24 Section 1983 provides a cause of action against “every person who, under || color of any statute . . . of any State .. . subjects, or causes to be subjected, any || citizen . . . to the deprivation of any rights, privileges, or immunities secured by the || Constitution and laws....” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alterations in || original) (quoting 42 U.S.C. § 1983). The purpose of Section 1983 is “to deter state | actors from using the badge of their authority to deprive individuals of their || federally guaranteed rights and to provide relief to victims if such deterrence fails.”

3 || Wyatt, 504 U.S. at 161. To state a claim under Section 1983, a plaintiff must || allege: (1) a right secured by the Constitution or laws of the United States was || violated; and (2) the alleged violation was committed by a person acting under || color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

8 1. The Complaint Does Not State a Claim for Violation of the 9 Rights to Life, Liberty, and the Pursuit of Happiness.

10 The Complaint’s assertion of a violation of Plaintiff’s rights to life, liberty, || and the pursuit of happiness is not cognizable. (Compl. 5.) “Those principles, || described in the Declaration of Independence, do not guarantee enforceable rights.”

13 || Minyard v. Walsh, No. ED CV 13-00110 DSF (RZ), 2014 U.S. Dist. LEXIS 35371, || at *11 (C.D. Cal. Jan. 22, 2014), accepted, 2014 U.S. Dist. LEXIS 35368 (C.D. Cal. || Mar. 17, 2014). “The Declaration of Independence is an important historical || document, but it is not law.” Morgan v. County of Hawaii, No. 14-00551 SOM- | BMK, 2016 USS. Dist. LEXIS 41063, at *72, 2016 WL 1254222, at *24 (D. Haw. || Mar. 29, 2016). This claim must be omitted from any amended complaint.

20 2. The Complaint Does Not State an Eighth Amendment Claim 21 for Plaintiff’s Conditions of Confinement.

22 The treatment a prisoner receives in prison and the conditions under which a || prisoner is confined are subject to scrutiny under the Eighth Amendment, which || prohibits cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 || (1994). “[W]hile conditions of confinement may be, and often are, restrictive and || harsh, they ‘must not involve the wanton and unnecessary infliction of pain.””

27 || Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. || Chapman, 452 U.S. 337, 347 (1981)). “In other words, they must not be devoid of || legitimate penological purpose, or contrary to ‘evolving standards of decency that || mark the progress of a maturing society.’” Morgensen, 465 F.3d at 1045 (citation || omitted) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). “An institution’s || obligation under the eighth amendment is at an end if it furnishes sentenced || prisoners with adequate food, clothing, shelter, sanitation, medical care, and || personal safety.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (quoting || Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)).

8 A prison official violates the Eighth Amendment when two requirements are || met: (1) “the deprivation alleged must be, objectively, ‘sufficiently serious,’; a || prison official’s act or omission must result in the denial of ‘the minimal civilized || measure of life’s necessities’”; and (2) subjectively, the prison official acted with || “deliberate indifference” to an inmate’s health or safety—that is, “the official | knows of and disregards an excessive risk to inmate health or safety; the official || must both be aware of facts from which the inference could be drawn that a || substantial risk of serious harm exists, and he must also draw the inference.”

16 || Farmer, 511 U.S. at 834, 837 (citations omitted).

18 Objective Prong. The Complaint satisfies the objective prong because it |) alleges that Plaintiff was held in his cell without being let out once for “over 100 || days straight.” (Compl. 18.) This allegation can be construed as a claim for || prolonged deprivation of outdoor exercise, which can constitute a sufficiently || serious deprivation. See Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) || (holding that deprivation of outdoor exercise for six-and-one-half weeks satisfied || the objective element of an Eighth Amendment claim).

25 Plaintiff also alleges that he was denied clothing, showers, hygiene products, || food, sleep, and water. (Compl. 5, 18.) These are “basic human needs” protected || by the Eighth Amendment. See Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th || Cir. 1986) (‘Basic human needs” protected by the Eighth Amendment include || “food, clothing, shelter, sanitation, medical care, and personal safety.”) However, || the Complaint does not contain sufficient allegations to allow the Court to conclude || that these deprivations were objectively sufficiently serious. If Plaintiff includes an || Eighth Amendment claim regarding these conditions in an amended complaint, | Plaintiff should add additional factual allegations, including their “circumstances, || nature, and duration.” See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) || (The circumstances, nature, and duration of a deprivation of these necessities must || be considered in determining whether a constitutional violation has occurred. The || more basic the need, the shorter the time it can be withheld.”) (quotations omitted).

10 Finally, Plaintiff alleges that he was subject to harassment: Defendant 1] || threatened to prescribe Plaintiff false medication, to recommend him to a state || mental institution, and threatened him with sexual assault and genital mutilation.

13 || (Compl. 5, 12, 18.) However, verbal harassment or abuse is not protected by the || Eighth Amendment. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) | (“[V]erbal harassment or abuse . . . is not sufficient to state a constitutional | deprivation under 42 U.S.C. § 1983.”) (quoting Collins v. Cundy, 603 F.2d 825, 827 || (10th Cir. 1979)). Similarly, the Eighth Amendment does not protect verbal sexual || harassment that does not involve physical contact. Austin v. Terhune, 367 F.3d 19 || 1167, 1171-72 (9th Cir. 2004). Plaintiff should omit the non-sexual verbal || harassment allegations from any amended complaint. Unless Plaintiff can add |) factual allegations of physical contact in connection with the alleged sexual || harassment, he also should omit the sexual harassment allegations from any || amended complaint.

25 Subjective Prong. The Complaint fails the subjective prong because it || contains no allegations to support the inference that Defendant acted with || “deliberate indifference” to Plaintiff's health or safety. If Plaintiff files an amended || complaint with an Eighth Amendment claim concerning the conditions of | confinement, he must add sufficient allegations from which it can be inferred that || Defendant “demonstrate[s] a subjective awareness of the risk of harm” to Plaintiff.

3 || See Castro v. County of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (quoting || Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2011).

6 3. The Complaint Does Not State an Eighth Amendment Claim 7 for Deliberate Indifference to Serious Medical Needs.

8 “The government has an ‘obligation to provide medical care for those whom || it is punishing by incarceration,’ and failure to meet that obligation can constitute || an Eighth Amendment violation cognizable under § 1983.” Colwell v. Bannister, | 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 103— | 05 (1976)). “To maintain an Eighth Amendment claim based on prison medical || treatment, an inmate must show ‘deliberate indifference to serious medical || needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle, 429 || U.S. at 104). A plaintiff must allege sufficient facts to satisfy a two-prong test: || (1) an objective standard—the existence of a serious medical need; and (2) a || subjective standard—deliberate indifference. Colwell, 763 F.3d at 1066.

18 A “serious medical need” exists if “failure to treat a prisoner’s condition | could result in further significant injury or the ‘unnecessary and wanton infliction || of pain.’” Jett, 439 F.3d at 1096 (citing McGuckin v. Smith, 974 F.2d 1050, 1059 || (9th Cir. 1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, || 104 F.3d 1133 (9th Cir. 1997) (en banc)). Neither result is the type of “routine || discomfort [that] is ‘part of the penalty that criminal offenders pay for their || offenses against society.” McGuckin, 974 F.2d at 1059 (alteration in original) || (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). “The existence of an injury || that a reasonable doctor or patient would find important and worthy of comment or || treatment; the presence of a medical condition that significantly affects an |} individual’s daily activities; or the existence of chronic and substantial pain are 1] || examples of indications that a prisoner has a ‘serious’ need for medical treatment.”

2 || MceGuckin, 974 F.2d at 1059-60.

3 The subjective “deliberate indifference” prong “is satisfied by showing (a) a || purposeful act or failure to respond to a prisoner’s pain or possible medical need || and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. Deliberate || indifference may be manifested “when prison officials deny, delay or intentionally || interfere with medical treatment,” or in the manner “in which prison physicians || provide medical care.” McGuckin, 974 F.2d at 1059. However, deliberate |) indifference is met only if the prison official “knows of and disregards an || excessive risk to inmate health or safety; the official must both be aware of facts || from which the inference could be drawn that a substantial risk of serious harm || exists, and he must also draw the inference.” Farmer, 511 U.S. at 834. The || defendant “must purposefully ignore or fail to respond to the plaintiffs pain or || possible medical need for deliberate indifference to be established.” See 1S || McGuckin, 974 F.2d at 1060.

17 Objective Prong. Here, two psychiatric reports attached as exhibits to the || Complaint satisfy the objective prong. (See Letter from Jack Rothberg, M.D., || Ph.D. to the Honorable Leslie Swain, Judge of the Superior Court (Mar. 1, 2016), || ECF No. 1, at 31-33 (“March 1, 2016 Report”); Letter from Jack Rothberg, M.D., || Ph.D. to Vicky Ourfalian, Deputy Alternate Public Defender (Aug. 18, 2016), ECF || No. 1, at 47-49 (“August 18, 2018 Report.”)) Specifically, the March 1, 2016 || Report states that Plaintiff “demonstrates a significant thought disorder,” “was on || the suicide module in a suicide gown,” and “has an underlying psychotic process, || most likely bipolar.” (Mar. 1, 2016 Rep.) The August 18, 2016 Report states that || Plaintiff has a “significant mental illness,” is “delusional,” and “is suffering from || psychosis and experiences numerous delusional ideas which impair his thinking.”

28 || (Aug. 18, 2016 Rep.) These statements are sufficient to allege a “serious medical | need.” See Lipsey v. Depovic, No. 1:18-cv-00767-JDP, 2019 U.S. LEXIS 129822, || at *9-10 (E_D. Cal. Aug. 2, 2019) (“The complaint alleges facts to support the || conclusion that plaintiff had a serious medical need—given his bipolar affective || disorder.”); Padilla v. Beard, No. 2:14-cv-1118 KJM-CKD, 2017 U.S. Dist. || LEXIS 11851, at *45—46 (E.D. Cal. Jan. 27, 2017) (“An inmate exhibiting || symptoms of psychosis has established a serious medical need for purposes of the || objective prong of a deliberately indifference claim.”).

9 Subjective Prong. Nonetheless, the Complaint does not contain sufficient || allegations from which it could be inferred that Defendant acted with “deliberate || indifference” to Plaintiffs health—that is, that Defendant was aware of and || purposefully failed to respond to Plaintiffs serious medical need. See Farmer, 511 || U.S. at 834. Plaintiff alleges that Defendant misdiagnosed Plaintiff with multiple || mental illnesses. (Compl. 18.) However, “an inadvertent failure to provide || adequate medical care,” “negligence in diagnosing or treating a medical || condition,” and medical malpractice do not violate the Eighth Amendment.

17 || Estelle, 429 U.S. at 105-06. Even gross negligence is insufficient to establish || deliberate indifference to serious medical needs. See Wood v. Housewright, 900 || F.2d 1332, 1334 (9th Cir. 1990). If Plaintiff files an amended complaint with an || Eighth Amendment claim for deliberate indifference to serious medical needs, he || must correct this deficiency.

23 4. The Complaint Does Not State a First Amendment Access- 24 To-Courts Claim.

25 Prisoners have a constitutional right of access to the courts, protected by the |} First Amendment right to petition. Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th || Cir. 2011). This right is limited to direct criminal appeals, habeas petitions, and || Section 1983 civil rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). The || right, however, “guarantees no particular methodology but rather the conferral of a || capability—the capability of bringing contemplated challenges to sentences or || conditions of confinement before the courts. . . . [I]t is this capability, rather than the || capability of turning pages in a law library, that is the touchstone” of the right of 5. || access to the courts. Id. at 356-57.

6 The Supreme Court has identified two categories of access-to-court claims.

7 || Christopher v. Harbury, 536 U.S. 403, 412-13 (2002). The first category consists | of “forward-looking” claims, which allege that official action presently is frustrating || the plaintiffs ability to prepare and file a suit at the present time. Jd. at 413. The || object of “forward-looking” claims is to “place the plaintiff in a position to pursue a || separate claim for relief once the frustrating condition has been removed.” Jd. The || second category consists of “backward-looking” claims, which allege that due to || official action, a specific case “cannot now be tried (or tried with all material || evidence), no matter what official action may be in the future.” Jd. at 413-14.

15 || These cases look “backward to a time when specific litigation ended poorly, or || could not have commenced, or could have produced a remedy subsequently || unobtainable.” Jd. at 414.

18 To state a claim for denial of access to the courts, a plaintiff must establish || that he or she suffered an “actual injury”—that is, “actual prejudice with respect to || contemplated or existing litigation, such as the inability to meet a filing deadline or || to present a claim.” Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. || 2011) (quoting Lewis, 518 U.S. at 348-49). “Actual injury is a jurisdictional || requirement that flows from the standing doctrine and may not be waived.” Nev. || Dep’t of Corr., 648 F.3d at 1018. However, even if delays in providing legal || materials or assistance result in actual injury, they are “not of constitutional || significance” if “they are the product of prison regulations reasonably related to || legitimate penological interests.” Lewis, 518 U.S. at 362.

28 || /// 1 Here, Plaintiff alleges that Defendant denied him an attorney, reading and || writing materials, and legal resources. (Compl. 5, 12.) These sparse allegations are || insufficient to state a First Amendment access-to-courts claim. Plaintiff’s || allegations are so threadbare that the Court cannot discern whether Plaintiff seeks to || assert a “forward-looking” or “backward-looking” access-to-courts claim. In || addition, the Complaint does not allege that Plaintiff suffered an “actual injury” due || to the alleged deprivations. If Plaintiff files an amended complaint with a First || Amendment access-to-court claim, Plaintiff must allege the underlying legal claim || he is or was prevented from pursuing, and how Defendant’s acts caused him “actual || injury” with respect to contemplated or existing litigation.

12 | V. CONCLUSION 13 For the reasons stated above, the Court DISMISSES the Complaint WITH | LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after the date || of this Order, either: (1) file a First Amended Complaint, or (2) advise the Court || that Plaintiff does not intend to file a First Amended Complaint.

17 The First Amended Complaint must cure the pleading defects discussed || above and shall be complete in itself without reference to the Complaint. See L.R. || 15-2 (“Every amended pleading filed as a matter of right or allowed by order of the || Court shall be complete including exhibits. The amended pleading shall not refer to || the prior, superseding pleading.”). This means that Plaintiff must allege and plead || any viable claims in the First Amended Complaint again. Plaintiff shall not include || new defendants or new allegations that are not reasonably related to the claims || asserted in the Complaint.

25 In any amended complaint, Plaintiff should confine his allegations to those || operative facts supporting each of his claims. Plaintiff is advised that pursuant to || Rule 8, all that is required is a “short and plain statement of the claim showing that |) the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the || standard civil rights complaint form when filing any amended complaint, a || copy of which is attached. In any amended complaint, Plaintiff should identify the || nature of each separate legal claim and make clear what specific factual allegations || support each of his separate claims. Plaintiff strongly is encouraged to keep his |) statements concise and to omit irrelevant details. It is not necessary for Plaintiff to || cite case law, include legal argument, or attach exhibits at this stage of the || litigation. Plaintiff also is advised to omit any claims for which he lacks a sufficient || factual basis.

9 The Court explicitly cautions Plaintiff that failure to timely file a First | Amended Complaint, or timely advise the Court that Plaintiff does not intend || to file a First Amended Complaint, will result in a recommendation that this || action be dismissed for failure to prosecute and/or failure to comply with court || orders pursuant to Federal Rule of Civil Procedure 41(b).

14 If Plaintiff no longer wishes to pursue this action in its entirety or with || respect to particular Defendants, he voluntarily may dismiss this action or particular || Defendants by filing a Notice of Dismissal in accordance with Federal Rule of Civil || Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's || convenience.

19 Plaintiff is advised that this Court’s determination herein that the allegations || in the Complaint are insufficient to state a particular claim should not be seen as || dispositive of the claim. Accordingly, although the undersigned Magistrate J udge |) believes Plaintiff has failed to plead sufficient factual matter in the pleading, || accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is || not required to omit any claim or Defendant in order to pursue this action.

25 || However, if Plaintiff decides to pursue a claim in an amended complaint that the || undersigned previously found to be insufficient, then pursuant to 28 U.S.C. § 636, || the undersigned ultimately may submit to the assigned District Judge a || recommendation that such claim may be dismissed with prejudice for failure to | || state a claim, subject to Plaintiff's right at that time to file objections. See Fed. R. || Civ. P. 72(b); C.D. Cal. L.R. 72-3.

4 IT IS SO ORDERED.

5 / || DATED: August , 2019 7 A A. AUDERO : UNITED STATES MAGISTRATE JUDGE aT