1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 McGHEE TONY DUCLOS, No. 2:23-CV-1000-DMC-P 12 Plaintiff, 13 v. ORDER 14 JEFF LYNCH, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

. Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr.,

(9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne,

(9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone,

, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 Plaintiff McGhee Tony Duclos names as defendants: (1) Warden Jeff Lynch, (2) 11 Correctional Officer J. Gregory, (3) Correctional Officer T. Cameron; (4) Correctional Officer T. 12 Drake; (5) RN Steve Molina; and (6) Chief of Mental Health K. Franceschi. See ECF No. 1, pgs. 13 1-2. Generally, Plaintiff alleges excessive force and failure to protect, both in violation of his 14 Eighth Amendment rights. 15 In his first claim, Plaintiff asserts that Defendant Correctional Officer J. Gregory 16 and Defendant Correctional Officer T. Cameron violated his Eighth Amendment rights by failing 17 to properly protect Plaintiff from attempting suicide. See id. at 5. Plaintiff provides details 18 regarding the first suicide attempt on the morning of February 19, 2023. According to Plaintiff, 19 he struggled with suicidal ideations and attempted to make a noose around the light fixture within 20 his cell in attempts to hang himself. See id. Plaintiff began to experience chest pains and agreed 21 with the officers that he would give up the restraints and remove the noose from the fixture if he 22 was provided with medical care. See id. Plaintiff was treated for his blood pressure and was then 23 discharged. Defendant Correctional Officer J. Gregory and Defendant Correctional Officer T. 24 Cameron escorted Plaintiff back to his unit, directing Plaintiff to sit on a golf cart at the rear of 25 the vehicle in a single seat. See id. Plaintiff was not restrained to the single seat during his 26 transportation. See id. Plaintiff, still suffering from suicidal ideations, saw a correctional van 27 approaching from the right side and lunged himself from the moving golf cart in an attempt to 28 commit suicide a second time by being ran over by the van. See id. Plaintiff sustained serious 1 shoulder injuries after falling to the gravel and rolling twice. See id. Plaintiff alleges that 2 Defendants acted with deliberate indifference to Plaintiff’s suicidal state of mind by neglecting to 3 retrain Plaintiff from lunging in front of other moving vehicles. See id. at 5. 4 In his second claim, Plaintiff alleges that Defendant Correctional Officer J. 5 Gregory and Defendant Correctional Officer T. Cameron used excessive force to restrain Plaintiff 6 once he was brought back to his cell. See id. at 6. Plaintiff alleges that when he was escorted back 7 to his cell, he kneeled to have the leg-irons removed and Defendant Correctional Officer T. Drake 8 exclaimed “stop resisting.” Id. Plaintiff claims that, subsequently, over ten correctional officers – 9 including Defendants Gregory, Cameron, and Drake – restrained him, kneeing him in the rib cage 10 and putting excessive pressure on the shoulder he had previously injured. See id. Plaintiff alleges 11 that this use of force was a violation of his Eighth Amendment rights because he was following 12 policy and procedure by kneeling to get leg-irons removed. See id. Plaintiff alleges that further 13 damage was caused to his right shoulder, and that he experiences chronic migraines since being 14 restrained by multiple officers. See id. 15 In his third claim for relief, Plaintiff asserts that Defendant Warden Jeff Lynch was 16 responsible for the incident that occurred on February 19, 2023, based on supervisory liability. 17 See id. at 7. Plaintiff alleges that Defendant Warden Jeff Lynch failed to adequately train custody 18 staff on the appropriation use of force and sufficient mental health crisis support. See id. Plaintiff 19 alleges that his rights were violated by Defendant Warden Jeff Lynch because he disregarded the 20 excessive risk to the health and safety of Plaintiff and other inmates by allowing the use of golf 21 carts as a means of transportation of high risk, suicidal inmates. See id. 22 Next, in his fourth claim Plaintiff alleges that the Chief of Mental Health K. 23 Franceschi violated Plaintiff’s Eighth Amendment rights by failing to adequately train the mental 24 health staff on recognizing signs and symptoms associated with risk of suicide. See id. at 8. 25 Plaintiff alleges that on April 27, 2023, he spoke with Chief of Mental Health K. Franceschi 26 regarding the incident that occurred on February 19, 2023. See id. Plaintiff further alleges that the 27 Chief of Mental Health K. Franceschi was shocked Plaintiff was not immediately placed on 28 suicide watch. See id. at 8. 1 Finally, in his last claim Plaintiff alleges that the Defendants’ failed to adequately 2 protect Plaintiff from attempting suicide again by not putting Plaintiff on suicide watch. See id. at 3 9. After multiple attempts to commit suicide on February 19, 2023, Plaintiff alleges that he was 4 continuously cleared to return to his cell. See id. at 9. Plaintiff alleges that upon being cleared and 5 escorted back to his cell, he attempted suicide a third time by consuming ten Tripetals. See id. 6 Plaintiff alleges that 911 was called due to Plaintiff’s unresponsiveness and rapid breathing. See 7 id. Plaintiff further alleges that the staff on duty, Defendant RN Molina, still failed to ensure 8 Plaintiff was admitted to a crisis bed following his third suicide attempt. See id. 9 10 II. DISCUSSION 11 The Court finds that Plaintiff’s complaint states a cognizable Eighth Amendment 12 claim against Defendant Molina based on alleged deliberate indifference to Plaintiff’s suicidal 13 ideation (fifth claim). In addition, the Court finds that Plaintiff’s complaint states cognizable 14 Eighth Amendment claims against Defendants Gregory, Cameron, and Drake based on alleged 15 use of excessive force (second claim). Plaintiff has not, however alleged sufficient facts to 16 establish the liability of the prison warden, Defendant Lynch (third claim). Nor has Plaintiff 17 asserted sufficient facts to establish the liability of the Chief of Mental Health, K. Franceschi 18 (fourth claim). Finally, Plaintiff has not alleged sufficient facts to show the deliberate indifference 19 of Defendants Gregory and Cameron to support his failure-to-protect allegations (first claim). 20 A. Supervisory Liability 21 Supervisory personnel are generally not liable under § 1983 for the actions of their 22 employees. See Taylor v. List,

(9th Cir. 1989) (holding that there is no 23 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 24 violations of subordinates if the supervisor participated in or directed the violations. See id. The 25 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 26 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 27 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 28 and not the conduct of others. See Ashcroft v. Iqbal,

(2009). Supervisory 1 personnel who implement a policy so deficient that the policy itself is a repudiation of 2 constitutional rights and the moving force behind a constitutional violation may, however, be 3 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 4 Cnty of San Diego,

(9th Cir. 1991) (en banc). 5 When a defendant holds a supervisory position, the causal link between such 6 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 7 Stapley,

(9th Cir. 1979); Mosher v. Saalfeld,

(9th Cir. 8 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 9 civil rights violations are not sufficient. See Ivey v. Board of Regents,

(9th 10 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 11 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 12 Here, in his third and fourth claims, Plaintiff names as defendants the prison 13 warden, Defendant Lynch, and the chief mental health officer, K. Franceschi. Plaintiff has not, 14 however, included in the complaint any allegations of these defendants’ personal involvement in 15 any of the claims raised. Instead, Plaintiff alleges liability based on a theory of respondeat 16 superior, which is not a cognizable theory in a civil rights action. Plaintiff will be provided an 17 opportunity to amend. 18 B. Deliberate Indifference 19 To establish that a prison official has violated their duty to protect inmates from 20 serious risks to their health, the prisoner must establish that prison officials were “deliberately 21 indifferent” to serious threats to the inmate’s safety. See Farmer v. Brennan,

, 22 837 (1994). A plaintiff must show that the prison official knew of and disregarded an excessive 23 risk to the inmate’s safety to demonstrate deliberate indifference. See

; see also 24 Simmons v. Navajo Cty.,

-11, 1017 (9th Cir. 2010); Gibson v. Cty of Washoe, Nev., 25

(9th Cir. 2002); Jeffers v. Gomez,

(9th Cir. 2001) (per 26 curiam); Anderson v. Cty. of Kern,

(9th Cir. 1995). The official must be both 27 aware of facts from which the inference could be drawn that a substantial risk of serious harm 28 exists, and the official must also draw the inference. “Prison officials may not escape liability 1 because they cannot, or did not, identify the specific source of the risk; the serious threat can be 2 one to which all prisoners are exposed. See Farmer,

. 3 Here, in his first claim, Plaintiff asserts that Defendants Gregory and Cameron 4 violated Plaintiff’s Eighth Amendment rights by failing to properly protect Plaintiff from 5 attempting suicide. Plaintiff has not provided sufficient facts to indicate these individuals’ 6 deliberate indifference to Plaintiff’s suicidal state of mind in placing him on the back of the golf 7 cart without restraints. By the time Plaintiff had been placed on the back of the golf cart without 8 restraints, it appears that the suicide attempts earlier in the day had ended and Plaintiff had been 9 seen in the mental health clinic. Given these intervening events, and the lack of allegations 10 relating to Defendants’ state of mind or knowledge of further suicidal ideation at the time Plaintiff 11 was placed on the golf cart, the Court cannot say that Plaintiff has adequately pleaded an Eighth 12 Amendment deliberate indifference claim. Plaintiff will be provided leave to amend. 13 14 III. CONCLUSION 15 Because it is possible that the deficiencies identified in this order may be cured by 16 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith,

(9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 18 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet,

, 19 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 20 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 21 amended complaint must be complete in itself without reference to any prior pleading. See

22 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 23 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 24 Ellis v. Cassidy,

(9th Cir. 1980). The complaint must allege in specific terms how 25 each named defendant is involved and must set forth some affirmative link or connection between 26 each defendant’s actions and the claimed deprivation. See May v. Enomoto,

, 167 27 (9th Cir. 1980); Johnson v. Duffy,

(9th Cir. 1978). 28 / / / ] Because the complaint appears to otherwise state cognizable claims, if no amended 2 || complaint is filed within the time allowed therefor, the Court will issue findings and 3 || recommendations that the claims identified herein as defective be dismissed, as well as such 4 | further orders as are necessary for service of process as to the cognizable claims. 5 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended 6 || complaint within 30 days of the date of service of this order. 7 8 || Dated: January 9, 2024 Ss..c0_, ? DENNIS M. COTA 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28