Scott Williams v. Linda Sanders et al

Filing 2

ORDER TO SHOW CAUSE by Magistrate Judge Oswald Parada. Response to Order to Show Cause due by 6/14/2013. Plaintiff is ordered to show cause on or before June 14, 2013, why his in forma pauperis application should not be denied. If Plaintiff still wishes to pursue this action, he shall have until June 14, 2013, to file an amended Complaint, attempting to cure the defects in the Complaint. The amended Complaint shall be complete in itself and must remedy the deficiencies discussed (See Minutes for complete text) Failure to comply with these requirements may result in a recommendation that the in forma pauperis application be denied for failure to state a claim on which relief may be granted. The failure to properly respond to this OSC wi ll result in a recommendation that the in forma pauperis application be denied for failure to prosecute and/or failure to comply with a court order. The Clerk is directed to provide Plaintiff with a blank Central District Civil Rights Complaint form and a blank in forma pauperis application. (Attachments: # 1 Exhibit Blank Civil Rights Complaint Form, CV 66A) (jh)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

Oswald Parada, United States Magistrate Judge

Present: The
Honorable
As assigned
Deputy Clerk

N/A
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS: ORDER TO SHOW CAUSE

I.
Proceedings
On April 30, 2013, Scott Williams (“Plaintiff”) lodged for filing what purports to be a
Civil Rights Complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (“Complaint”), along with an in forma
pauperis application in order to proceed without payment of the full filing fee and a
motion for a temporary restraining order/preliminary injunction. (ECF No. 1.) Because
Plaintiff has requested leave to proceed in forma pauperis, the Court has screened the
Complaint for the purpose of determining whether the action is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A.
For the reasons set forth below, Plaintiff is ordered to show cause why his in forma
pauperis application should not be denied.
II.
Discussion
A.

Summary of Plaintiff’s Allegations.

The named Defendants in the Complaint are as follows: (1) Linda Sanders, former
Warden of the Federal Correctional Complex (“FCC”) at Lompoc, California; (2) Oscar
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

Salcido, mid-level practitioner at FCC Lompoc; (3) H. Rada, mid-level practitioner at
FCC Lompoc; (4) E. Casino, mid-level practitioner at FCC Lompoc; (5) Richard Gross,
D.O. (Doctor of Osteopathy) at FCC Lompoc; (6) Leonardo Giron, M.D. and Clinical
Director at FCC Lompoc; (7) Jaspal Dahliwahl, M.D. at FCC Lompoc; (8) Evelyn
Castro, M.D. at Federal Correctional Institution (“FCI”) at Terminal Island, California;
(9) Jose Esquentini, physician’s assistant at FCC Victorville; (10) Jesus Fernandez, M.D.
at FCC Victorville; (11) Bridgette Wolverton, physician’s assistant at FCC Victorville;
(12) Ladrew Price, emergency medical technician at FCC Victorville; (13) Angel Ortiz,
M.D. and Clinical Director at FCC Victorville; (14) Federal Bureau of Prisons; (15) FCI
Terminal Island; and (16) United States of America. Plaintiff alleges two claims, an
Eighth Amendment claim based on deliberate indifference to his serious medical needs
and a negligence claim under the Federal Tort Claims Act (“FTCA”). Plaintiff does not
indicate whether Defendants are sued in the individual or official capacities. Plaintiff
seeks damages, declaratory relief, and injunctive relief. (Compl. at 1-6.)
In the Complaint, Plaintiff alleges that he sustained injuries to his neck and back after
falling off his upper bunk in March 2012 while housed at FCC Lompoc. He had
previously undergone surgery and treatment for brain cancer. He was prescribed 200mg
of morphine sulfate twice daily as part of his treatment regimen. The crux of Plaintiff’s
allegations are that he was not given sufficient amounts of morphine sulfate to manage
his pain by Defendants Salcido, Rada, Casino, Gross, Giron, Dahliwahl, and Sanders
while housed at FCC Lompoc, by Defendants Price, Ortiz, Esquentini, and Wolverton
while housed at FCC Victorville, and by Defendants Fernandez and Castro while housed
at FCI Terminal Island. Plaintiff also appears to allege that Defendants Salcido and
Castro improperly delayed performing an x-ray and/or MRI on Plaintiff’s neck. Plaintiff
was housed at FCC Lompoc sometime before March 2012 until May 2012. He was then
transferred to FCC Victorville on May 29, 2012. He was finally transferred to FCI
Terminal Island on or about June 2, 2012. (Id. at 3-6.)
B.

The Complaint Is Subject to Dismissal Based on Sovereign Immunity.

Absent an express waiver, sovereign immunity shields the Federal Government and its
agencies from suit. Loeffler v. Frank, 486 U.S. 549, 554, 108 S. Ct. 1965, 100 L. Ed. 2d
549 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244, 60 S. Ct. 488,
84 L. Ed. 724 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the “terms
of [the United States’] consent to be sued in any court define that court’s jurisdiction to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L.
Ed. 1058 (1941); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961,
77 L. Ed. 2d 580 (1983) (“It is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a prerequisite for jurisdiction.”); Arnsberg
v. United States, 757 F.2d 971, 977-78 (9th Cir. 1985) (no right to money damages
against United States without sovereign immunity waiver). A waiver of sovereign
immunity “cannot be implied but must be unequivocally expressed” by Congress.
United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 1503, 23 L. Ed. 2d 52 (1969).
Without such a waiver, the courts have no jurisdiction to entertain a suit against the
United States. Sherwood, 312 U.S. at 586; Gilbert v. DaGrossa, 756 F.2d 1455, 1458
(9th Cir. 1985) (where suit has not been consented to by United States, dismissal of
action is required.).
Moreover, the bar of sovereign immunity cannot be avoided by naming officers and
employees of the United States as defendants when such suit is based on actions done in
their official capacities. See Gilbert, 756 F.2d at 1458. However, a Complaint that seeks
damages against government officials in their individual capacity would not be barred by
sovereign immunity. Id. at 1459.
The United States, through the FTCA1, has made a limited waiver of sovereign
immunity. FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994)
(Federal Tort Claims Act waived sovereign immunity for “certain torts committed by
federal employees.”). The FTCA waiver of sovereign immunity does not, however,
extend to constitutional claims. Although individual employees of the Federal
Government may be sued for alleged violations of a plaintiff’s constitutional rights, see
1

The relevant portion of the Federal Tort Claims Act (“FTCA”) provides in
pertinent part that:
. . .the district courts . . . shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages, . . . for injury or loss
of property, or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. §1346(b)(1)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

generally Bivens, 403 U.S. at 388, such claims may not be asserted against the Federal
Government itself. See FDIC, 510 U.S. at 477-78; Clemente v. United States, 766 F.2d
1358, 1363 (9th Cir. 1985); Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir. 1982);
Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978).
Plaintiff has named as Defendants, among others, the Federal Bureau of Prisons and FCI
Terminal Island, both agencies of the United States. However, he fails to allege an
express waiver of sovereign immunity. Thus, to the extent Plaintiff alleges
constitutional claims against the Federal Bureau of Prisons and FCI Terminal Island, the
Court finds that the Complaint is subject to dismissal based on sovereign immunity.
C.

The Complaint Is Subject to Dismissal for Failure to State an Eighth
Amendment Claim Based on Deliberate Indifference to Serious Medical
Needs.

The Eighth Amendment imposes duties on prison officials to provide humane conditions
of confinement by ensuring that inmates receive adequate food, clothing, shelter, and
medical care, and must “take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994) (citing Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S. Ct. 3194, 82 L. Ed. 2d
393 (1984)).
To establish an Eighth Amendment claim that prison authorities provided inadequate
medical care, a plaintiff must show that a defendant was deliberately indifferent to his
serious medical needs. Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 125 L.
Ed. 2d 22 (1993); Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed 2d 251
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other
grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Deliberate indifference may be manifested by the intentional denial, delay, or
interference with a plaintiff’s medical care, or by the manner in which the medical care
was provided. See Gamble, 429 U.S. at 104-05; McGuckin, 974 F.2d at 1059.
Furthermore, the defendant must purposefully ignore or fail to respond to a plaintiff’s
pain or medical needs. McGuckin, 974 F.2d at 1060. A plaintiff must allege that,
subjectively, the defendant had a “sufficiently culpable state of mind” when medical care
was refused or delayed. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (citing
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995)). A defendant must “both be
aware of the 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 837. An
inadvertent failure to provide adequate medical care, mere negligence or medical
malpractice, a mere delay in medical care (without more), or a difference of opinion over
proper medical treatment, are all insufficient to constitute an Eighth Amendment
violation. See Gamble, 429 U.S. at 105-07; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).
Prison officials violate their obligation by intentionally delaying access to medical care.
Clement, 298 F.3d at 905 (quoting Gamble, 429 U.S. at 104-05).
As stated above, the crux of Plaintiff’s allegations are that he was not given sufficient
amounts of morphine sulfate to manage his pain by Defendants Salcido, Rada, Casino,
Gross, Giron, Dahliwahl, and Sanders while housed at FCC Lompoc, by Defendants
Price, Ortiz, Esquentini, and Wolverton while housed at FCC Victorville, and by
Defendants Fernandez and Castro while housed at FCI Terminal Island. Plaintiff also
appears to allege that Defendants Salcido and Castro improperly delayed performing an
x-ray and/or MRI on Plaintiff’s neck. (Compl. at 3-6.) The allegations establish that
Plaintiff was receiving regular medical care at all three institutions and was receiving
certain dosages of morphine sulfate as part of his treatment regimen, although not at the
levels he desired. However, a difference of opinion over proper medical treatment, mere
negligence or medical malpractice, or a mere delay in medical care (without more) are
all insufficient to establish a deliberate indifference claim. See Gamble, 429 U.S. at
105-07; Sanchez, 891 F.2d at 242; Shapley, 766 F.2d at 407. Thus, the Court finds that
the Complaint is subject to dismissal for failure to state an Eighth Amendment claim
based on deliberate indifference to serious medical needs.
D.

Motion for Preliminary Injunction and/or Temporary Restraining Order.
1.

Legal Standard.

The standards for issuing a temporary restraining order and a preliminary injunction are
“substantially identical.” Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d
249 (2008). The Ninth Circuit summarized the Supreme Court’s recent clarification of
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

the standard for granting preliminary injunctions in Winter as follows: “[a] plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Am.
Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see
also Cal Pharms. Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009) (“Cal
Pharm. I”). Alternatively, “‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support issuance of an injunction,
assuming the other two elements of the Winter test are also met.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). A “serious question” is one on
which the movant “has a fair chance of success on the merits.” Sierra On-Line, Inc. v.
Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).
As set forth above, the Complaint is subject to dismissal for failure to state an Eighth
Amendment claim based on deliberate indifference to serious medical needs. Thus,
Plaintiff is unlikely to succeed on the merits of the claim.
Next, it is clear that Plaintiff has received regular medical care at all three institutions
and is receiving a pain treatment regimen. There is no indication otherwise. Thus,
Plaintiff is not likely to suffer irreparable harm.
Finally, the Court acknowledges that Plaintiff’s medical conditions result in pain and
require a pain treatment regimen. However, he is receiving a pain treatment regimen,
although not at the dosages he desires. It is for medical professionals, not for any
individual patient, to determine the medications and dosages that are medically
necessary. Thus, the balance of equities do not tip sharply in Plaintiff’s favor, and the
public interest would not be served by issuing injunctive relief at this time.
Accordingly, the denial of Plaintiff’s motion for a temporary restraining order/
preliminary injunction is warranted at this time.
///
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 13-00803-UA (OP)

Title

Scott Williams v. Linda Sanders, et al.

Date

May 9, 2013

III.
Conclusion
Based the foregoing, Plaintiff is ordered to show cause on or before June 14, 2013, why
his in forma pauperis application should not be denied. If Plaintiff still wishes to pursue
this action, he shall have until June 14, 2013, to file an amended Complaint, attempting
to cure the defects in the Complaint. The amended Complaint shall be complete in itself
and must remedy the deficiencies discussed herein. Plaintiff may not use “et al.” in the
caption but must name each defendant against whom claims are stated. Plaintiff must
use the blank Central District Civil Rights Complaint form accompanying this order,
must sign and date the form, must completely and accurately fill out the form, and must
use the space provided in the form to set forth all of the claims that he wishes to assert in
his amended Complaint. The amended Complaint shall not refer to the original
Complaint.
Failure to comply with these requirements may result in a recommendation that the in
forma pauperis application be denied for failure to state a claim on which relief may be
granted. The failure to properly respond to this OSC will result in a recommendation
that the in forma pauperis application be denied for failure to prosecute and/or failure to
comply with a court order.
The Clerk is directed to provide Plaintiff with a blank Central District Civil Rights
Complaint form and a blank in forma pauperis application.
IT IS SO ORDERED.
cc: All Parties of Record
Initials of deputy clerk

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