Hicks v. Covello

• Decision Date: 06 October 2022
• Docket Number: 2:22-cv-0903 KJN P
• Parties: DARYL HICKS, Plaintiff, v. PATRICK COVELLO, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

DARYL HICKS, Plaintiff,
v.
PATRICK COVELLO, et al., Defendants.

No. 2:22-cv-0903 KJN P

United States District Court, E.D. California

October 6, 2022

ORDER

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis is granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiffs trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the

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amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

As discussed below, plaintiff's complaint is dismissed with leave to amend.

Screening Standards

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'”

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

The Civil Rights Act

To prevail on a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The requisite causal connection between a supervisor's wrongful conduct and the violation of the prisoner's constitutional rights can be established in a number of ways, including by demonstrating that a supervisor's own culpable action or inaction in the training, supervision, or control of his subordinates was a cause of plaintiff's injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011).

Plaintiff's Complaint

Plaintiff alleges the following. First, plaintiff is entitled to early release under Proposition 57 but that unidentified officers have issued plaintiff rules violation reports to increase plaintiff's security level and prolong plaintiff's sentence.^[1] Second, he states he was “ejected to the yard with [his] proclaimed enemies,” claiming a threat to safety. (ECF No. 1 at 6.) Third, defendant Powell, plaintiff's clinician, threatened and disrespected plaintiff, and “began to create a

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voyeuristic environment when [they] were alone.” (ECF No. 1 at 7.) Fourth, defendant Dr. Kim crushed and floated plaintiff's Buspar and Ephexors [sic]^[2] prescriptions, which caused plaintiff to vomit all his medications; plaintiff explained that he was unable to finish swallowing eight pills with only two ounces of water, but the nurse made “false claims.” (ECF No. 1 at 8.) Dr. Kim stopped plaintiff's Buspar prescription, causing plaintiff to suffer withdrawals, and then lowered the dose of Ephexors. Dr. Kim then began a Zoloft prescription which caused plaintiff to suffer panic attacks, seizures, anxiety disorders, depression, and sleepless nights. About two months later, Dr. Kim again reduced the Ephexors, and a month later discontinued it altogether, again causing withdrawals. Fifteen days later, during plaintiff's IDTT with his mental health supervisor staff, it was admitted that “a mistake was made.” (ECF No. 1 at 8.) Plaintiff states he was recently removed from the mental health crisis bed, but also states he was not allowed to continue mental health care at the EOP level of care.^[3]

Plaintiff names as defendants Warden Patrick Covello, CCII K. Costa, Mental Health Supervisor R. Pleshchuk, Counselor Powell, and Psychiatrist Dr. Kim, all employed at Mule Creek State Prison. As relief, plaintiff seeks transfer to a prison where he can receive mental health care at the EOP level; have Proposition 57 time credits deducted from his sentence, and have prison programming and conduct credits applied to his sentence; have re-adjudicated every rules violation report that violated plaintiff's due process rights; and be provided a Proposition 57 parole board hearing. In addition, plaintiff asks that the facility to which he is transferred provide plaintiff with single cell status, video-camera coverage, and anti-racist staff.

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Discussion

Plaintiff's First Claim

Classification

Plaintiff alleges that he was illegally incarcerated at a Level III yard, and his due process rights were violated by raising his security level to IV. (ECF No. 1 at 5.)

Inmates do not have a constitutional right to be housed at a particular facility or institution or to be transferred, or not transferred, from one facility or institution to another. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). An inmate does not have a constitutional right to any particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (“[Petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process.”); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citations omitted). Nor do inmates have a right to be housed in a particular part of a prison. See Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir. 1991) (prisoner had “no ‘justifiable expectation' of being anywhere but in administrative detention,” and his “placement was left to the discretion of prison...