1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL ALAN YOCOM, Case No. 19-cv-02949-JST

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND; GRANTING REQUEST FOR SCREENING ORDER 10 TINA FOSS, et al., Re: ECF No. 36 Defendants. 11

12 13 Plaintiff, a person incarcerated at Salinas Valley State Prison (“SVSP”), has filed a pro se 14 action pursuant to

. His amended complaint (ECF No. 33) is now before the 15 Court for review under 28 U.S.C. § 1915A. The Court GRANTS Defendants’ request for 16 screening of the amended complaint. ECF No. 36. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which an incarcerated 20 person seeks redress from a governmental entity or officer or employee of a governmental entity. 21 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 22 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be 23 granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 24 § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See United States v. 25 Qazi,

(9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal,

, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice.

6 To state a claim under

, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

(1988). 10 B. Procedural Background 11 In the initial complaint, Plaintiff alleged that, while he was housed at SVSP from 12 September 2018 to January 2020, SVSP warden T. Foss1 refused to provide treatment for his 13 serious medical needs. ECF Nos. 1, 10. On March 23, 2021, the Court denied defendant Foss’s 14 motion for summary judgment for failure to exhaust administrative remedies but granted 15 defendant Foss’s motion to dismiss the complaint for failure to state an Eighth Amendment claim. 16 ECF No. 31. In granting the motion to dismiss, the Court stated as follows:

17 The Court agrees that Plaintiff has failed to state a cognizable claim for denial of medical treatment because any such claim is 18 contradicted by the exhibit to the complaint. The complaint alleges that, from September 10, 2018 through May 30, 2019, Defendant 19 Foss failed to provide medical treatment for a torn throat, torn colon, injured sternum and chest, hemorrhaging, and two broken arms. See 20 ECF No. 1 at 3. This allegation is contradicted by the grievance attached to the complaint. The grievance indicates that, on October 21 5, 2018, Plaintiff was sent to Natividad Medical Center (“NMC”) emergency room for evaluation and treatment in response to his 22 complaint of chest pain and broken arms; that while at NMC, Plaintiff was offered, and refused, treatment for bone infection, and 23 Plaintiff’s cardiac workup resulted in normal findings; and that two weeks later, a request for orthopedic surgery was submitted on 24 Plaintiff’s behalf. See ECF No. 1 at 7. The Court is “not required to accept as true allegations that contradict exhibits attached to the 25 complaint or matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of 26 facts, or unreasonable inferences.” Daniels-Hall, 629 F.3d at 998. 27 1 ECF No. 31 at 13. The Court dismissed the complaint with leave to amend because it was not 2 clear that Plaintiff could not state a cognizable Eighth Amendment claim. ECF No. 31 at 13. To 3 assist Plaintiff in preparing an amended complaint, the Court reviewed the relevant law governing 4 Eighth Amendment claims for deliberate indifference to serious medical needs. ECF No. 31 at 14- 5 15. The Court instructed Plaintiff that he must clearly link each named defendant to the alleged 6 constitutional violation, i.e. by specifying what defendant Foss did, or failed to do, that directly 7 violated his constitutional rights. The Court explained that there is no respondeat superior liability 8 under Section 1983, i.e. liability solely because a defendant is a supervisor or otherwise 9 responsible for the actions or omissions of another. Finally, the Court explained that to state a 10 cognizable Eighth Amendment claim, Plaintiff must plead factual content that would allow the 11 Court to draw the reasonable inference that prison officials knew that he faced a substantial risk of 12 serious harm and that these prison officials disregarded that risk by failing to take reasonable steps 13 to abate it. The Court further explained that, generally speaking, a difference of opinion between 14 an incarcerated person and prison medical authorities regarding treatment does not give rise to a 15 Section 1983 claim, unless the course of treatment the doctors chose was medically unacceptable 16 under the circumstances and the doctors chose the course in conscious disregard of an excessive 17 risk to the incarcerated person’s health. ECF No. 31 at 14-15. 18 C. Amended Complaint 19 In the caption and in Section B, the amended complaint names as defendants SVSP warden 20 Tina Foss, J. Clark Kelso, SVSP Chief Medical Officer Rivera, and SVSP medical grievance 21 coordinator Jane Doe. ECF No. 33 at 1-2. The amended complaint lists three causes of action: 22 two claims of Eighth Amendment deliberate indifference and torture, and one First Amendment 23 claim (“the rights to redress grievances violation”). Attached to these claims is a nine-page 24 narrative reviewing Plaintiff’s medical treatment, or lack thereof, since June 2018 while housed at 25 various Corrections of Department and Rehabilitation (“CDCR”) institutions, and referring to 26 numerous other correctional officials as defendants. ECF No. 33 at 8-16. The amended complaint 27 suffers from numerous deficiencies. For the reasons set forth below, the First Amendment claim 1 First, the Court will not attempt to determine causes of action or identify defendants from 2 the nine-page attachment to the amended complaint. The attachment is a vague and meandering 3 collection of Plaintiff’s complaints about the medical treatment provided or not provided since he 4 entered CDCR custody in June 2018. Fed. R. Civ. P. 8(a) requires a short and plain statement of 5 the legal claims. In preparing a second amended complaint, Plaintiff should, for each cause of 6 action, list the defendant(s) that committed the alleged constitutional violation, specify the 7 constitutional provision violated, and specify the actions or failures to act that constituted a 8 constitutional violation. The Court will not attempt to identify causes of actions or defendants 9 from a narrative of events. 10 Second, the claims regarding the processing of Plaintiff’s grievances are DISMISSED with 11 prejudice. A prison official’s denial of an incarcerated person’s grievance generally does not 12 constitute significant participation in an alleged constitutional violation sufficient to give rise to 13 personal liability under Section 1983. See, e.g., Wilson v. Woodford, No. 1:05–cv–00560–OWW– 14 SMS,

, at *6 (E.D. Cal. Mar. 30, 2009) (ruling against incarcerated person on 15 administrative complaint does not cause or contribute to constitutional violation). An incarcerated 16 person has no constitutional right to an effective grievance or appeal procedure. See Ramirez v. 17 Galaza,

(9th Cir. 2003) (holding that incarcerated person has no constitutional 18 right to effective grievance or appeal procedure); Mann v. Adams,

(9th Cir. 19 1988) (“There is no legitimate claim of entitlement to a grievance procedure.”). The dismissal of 20 claims related to the processing of Plaintiff’s grievances is without leave to amend because 21 amendment would be futile. See Lopez, 203 F.3d at 1130 (district court should grant leave to 22 amend unless pleading could not possibly be cured by the allegation of other facts). 23 Third, the amended complaint’s conclusory allegations fail to state a cognizable Eighth 24 Amendment claim against defendants Foss and Rivera. The amended complaint alleges that 25 defendant Foss “perpetrated torture to death;” was involved in a conspiracy to withhold his 26 prognosis of terminal illness; and falsely manufactured a mental health diagnosis. The amended 27 complaint further alleges that defendants Foss and Rivera failed to tell Plaintiff in 2019 that he 1 medical needs at issue, and why defendants Foss and Rivera’s actions were not reasonable steps to 2 abate Plaintiff’s medical need. 3 Fourth, the amended complaint’s allegations are too vague for the Court to determine how 4 Plaintiff’s constitutional rights are being violated. Plaintiff again fails to specify what specific 5 medical treatment was necessary but not provided and who denied the requested or necessary 6 medical treatment. For example, the amended complaint fails to explain what a “proper 7 hospitalization” is, or what Plaintiff’s terminal diagnosis is. The amended complaint repeatedly 8 attributes inaction or inadequate care to “Defendants” as a group, without specifying which 9 defendant committed the alleged constitutional violation. 10 Fifth, Plaintiff is improperly attempting to sue for constitutional violations arising out of 11 separate occurrences, in violation of Fed. R. Civ. P. 20. Here, Plaintiff alleges that all the 12 healthcare he has received since June 2018, while housed at North Kern State Prison (“NKSP”), 13 Salinas Valley State Prison, and California Healthcare Facility (“CHCF”), has been inadequate 14 and the equivalent of torture. He seeks to file an “unlimited federal civil rights complaint” and 15 requests that the Court join all the lawsuits he has filed regarding his healthcare. Although all of 16 Plaintiff’s claims concern his healthcare, these incidents are separate series of occurrences.2 These 17 claims concern healthcare decisions made by different individuals at different institutions in 18 response to Plaintiff’s health condition at that particular time. Pursuant to Fed. R. Civ. P. 20, these 19 claims must be brought in separate actions. Fed R. Civ. P. 20 provides that all persons “may be 20 joined in one action as defendants if: (A) any right to relief is asserted against them jointly, 21 severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or 22 series of transactions or occurrences; and (B) any question of law or fact common to all defendants 23 will arise in the action.” Fed. R. Civ. P. 20(a)(2). The upshot of these rules is that “multiple 24 claims against a single party are fine, but Claim A against Defendant 1 should not be joined with 25 unrelated Claim B against Defendant 2.” George v. Smith,

(7th Cir. 2007). 26

27 2 It appears that Plaintiff has filed an action in the Eastern District of California regarding his 1 “Unrelated claims against different defendants belong in different suits . . .”

“A buckshot 2 complaint that would be rejected if filed by a free person – say, a suit complaining that A 3 defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his 4 copyright, all in different transactions – should be rejected if filed by [an incarcerated person].” 5

Plaintiff may only allege claims that (a) arise out of the same transaction, occurrence, or series 6 of transactions or occurrences, and (b) present questions of law or fact common to all defendants 7 named therein. Plaintiff needs to choose the claims he wants to pursue in this action that meet 8 these joinder requirements. Claims regarding healthcare treatment received (or not received) at 9 California Healthcare Facility and North Kern State Prison should be filed in the Eastern District 10 of California. See

(b). 11 The Court notes although the amended complaint alleges that prison officials have denied 12 him medical treatment, the amended complaint’s allegations indicate that Plaintiff has received 13 significant medical treatment, ranging from hospitalizations, medical tests, and examination by 14 specialists and physicians. In addition, the amended complaint reports that various doctors who 15 have examined Plaintiff in the past two years have concluded that Plaintiff’s condition is stable, 16 and the tests conducted over the past two years do not indicate torture or lack of medical 17 treatment. Plaintiff, however, insists that these doctors are ignoring his medical needs and the test 18 results are doctored. The amended complaint’s allegations appear to indicate a difference of 19 opinion in medical treatment which would not state an Eighth Amendment violation. “A 20 difference of opinion between [an incarcerated person]-patient and prison medical authorities 21 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,

, 22 1344 (9th Cir. 1981). 23 In preparing a second amended complaint, Plaintiff is cautioned that “[t]hreadbare recitals 24 of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to 25 state a cognizable cause of action, and that the Court is not bound to accept as true a legal 26 conclusion couched as a factual allegation. Ashcroft,

. 27 CONCLUSION ] 1. Defendants’ request for screening of the amended complaint is GRANTED. ECF 2 || No. 36. 3 2. The Court DISMISSES the amended complaint with leave to amend. Within 4 || twenty-eight (28) days of the date of this order, Plaintiff shall file a second amended complaint. 5 The second amended complaint must include the caption and civil case number used in this order, 6 || Case No. C 19-02949 JST (PR) and the words “SECOND AMENDED COMPLAINT” on the first 7 || page. If using the court form complaint, Plaintiff must answer all the questions on the form in 8 order for the action to proceed. An amended complaint completely replaces the previous 9 || complaints. See Lacey v. Maricopa Cnty.,

(9th Cir. 2012). Accordingly, 10 || Plaintiff must include in his second amended complaint all the claims he wishes to present and all 11 of the defendants he wishes to sue, and may not incorporate material from the prior complaints by 12 || reference. Failure to file a second amended complaint in accordance with this order in the time E 13. || provided will result in dismissal of this action without further notice to Plaintiff. The Clerk shall 14 || include two copies of the court’s complaint form with a copy of this order to Plaintiff. 3 15 This order terminates ECF No. 36. 16 IT ISSO ORDERED. i 17 || Dated: January 3, 2022 . .

a 18 JON S. TIGAR 19 nited States District Judge 20 21 22 23 24 25 26 27 28