Hoy Chan v. Orry Marciano et al

Filing 7

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The First Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this memorandum and Order within which to file a Second Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Pla intiff is further advised that if he no longer wishes to pursue this action he may voluntarily dismiss it 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 Plaintiffs convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HOY CHAN, Plaintiff, 12 13 14 Case No. EDCV 16-2513 R (SS) MEMORANDUM AND ORDER v. DISMISSING FIRST AMENDED ORRY MARCIANO, et al., COMPLAINT WITH LEAVE TO AMEND Defendants. 15 16 17 18 I. 19 INTRODUCTION 20 21 On November 6, 2016, Plaintiff Hoy Chan (“Plaintiff”), a state 22 prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. 23 § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. 24 § 12131 et seq. 25 pleading, the Court dismissed the Complaint with leave to amend. 26 (Dkt. No. 5). 27 Amended Complaint on May 12, 2017. 28 (“Complaint,” Dkt. No. 1). Due to defects in Plaintiff subsequently filed the instant First (“FAC,” Dkt. No. 6). 1 Congress mandates that district courts perform an initial 2 screening of complaints in civil actions where a prisoner seeks 3 redress 4 § 1915A(a). This court may dismiss such a complaint, or any portion 5 of it, before service of process if the court concludes that the 6 complaint (1) is frivolous or malicious, (2) fails to state a claim 7 upon which relief can be granted, or (3) seeks monetary relief from 8 a defendant who is immune from such relief. 9 For the reasons stated below, the First Amended Complaint is 10 from a governmental entity or employee. 28 U.S.C. 28 U.S.C. § 1915A(b). DISMISSED with leave to amend.1 11 12 II. 13 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 14 15 Plaintiff names the following Chuckawalla Valley State Prison 16 (“CVSP”) employees as defendants in their official and individual 17 capacities:2 (1) physician’s assistant and “Primary Care Doctor” 18 Orry Marciano; (2) Nurse Beatres; (3) Warden Kimberly Sibel; 19 20 21 22 Magistrate Judges may dismiss a complaint with leave to amend without approval of the District Judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 1 Under section 1983, state officials sued in their official capacity for prospective injunctive relief are considered “individuals” not immune from suit. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). Plaintiff seeks injunctive relief on his section 1983 claims. Furthermore, the ADA allows suits for monetary damages against public entities. United States v. Georgia, 546 U.S. 151, 154 (2006). Under Title II, individuals may be sued in their official capacity because claims against them are claims against the governmental agency. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003). Thus, Plaintiff’s official capacity claims are proper here. 2 23 24 25 26 27 28 2 1 (4) Correctional Officer Anderson; and (5) Correctional Officer 2 Calvillo (collectively “Defendants”). (FAC at 3-4). 3 4 Plaintiff, a diabetic with breathing problems, alleges that 5 Marciano 6 disabilities. 7 a year” ago, Marciano promised Plaintiff access to an orthopedic 8 doctor, whom Plaintiff alleges he has not yet seen. 9 Marciano also prescribed medicine to Plaintiff that has allegedly 10 discriminated against (Id. at 3, 5). “deteriorated [his] body.” him because of his alleged Plaintiff contends that “more than (Id. at 5). (Id. at 3). 11 12 Plaintiff alleges that Nurse Beatres “always denied [his] 13 disability,” and yelled at him to stop complaining and “take 14 Tylenol.” 15 and Beatres told the officers that Plaintiff is not disabled, 16 Anderson and Cavillo “forced [him] to work using chemicals.” 17 at 4). 18 system,” he was not excused from work and could be written up if 19 he refused. (Id. at 3, 5). Plaintiff believes that, after Marciano (Id. Because Plaintiff’s disability was allegedly not “in the (Id.). 20 21 Plaintiff claims that the “severe pain” from his bunion is 22 exacerbated by the heavy work boots he must wear. 23 Plaintiff has attached records indicating that therapeutic shoes 24 were prescribed to him after two infirmary visits on February 15 25 and 23, 2017. 26 Amended Complaint, he has not received the shoes. (Id. at 7, 14).3 (Id. at 6). As of the filing of the First (Id. at 6). 27 The Court refers to the documents attached to the First Amended Complaint as if they were consecutively paginated. 3 28 3 1 During the February 23 visit, a cane was prescribed and a follow- 2 up “Orthotics Referral Request” was scheduled for May 23, 2017, 3 citing a “moderate right Bunion.” 4 indicate which physician treated him during either visit, but 5 Plaintiff claims that an unnamed “D Yard” doctor recommended the 6 cane. (Id. at 8). Records do not (Id. at 5, 7, 14). 7 8 Plaintiff alleges that Warden Sibel “knows what’s going on,” 9 i.e., that inmates are provided with doctors and nursing staff who 10 do not “[know] their jobs and responsibilities.” 11 Plaintiff 12 “responsibilities to inform or educate her staff” on the importance 13 of operational procedures. alleges that Sibel is also (Id. at 3). failing in her (Id. at 5). 14 15 The First Amended Complaint claims that Defendants “abused 16 [Plaintiff’s] constitutional rights” by discriminating against him 17 in violation of the Americans with Disabilities Act. 18 6). 19 punishment upon Plaintiff, by forcing him to work and showing 20 deliberate indifference to his medical needs. 21 First Amended Complaint also alleges violations of “Title 45” of 22 the California Code of Regulations, which does not appear to exist, 23 and claims that Sibel failed to train and supervise the Defendants. 24 (Id. at 3, 5). 25 6). 26 to be seeking an injunction, demanding his prescribed therapeutic 27 shoes and a visit to an orthopedic specialist. 28 does not request monetary damages. Defendants also allegedly inflicted cruel (Id. at 5and unusual (Id. at 3-5). Plaintiff’s prayer for relief is unclear. The (Id. at While Plaintiff vaguely calls for “justice,” he also appears 4 (Id.). (Id.). Plaintiff 1 III. 2 DISCUSSION 3 4 Pursuant to 28 U.S.C. § 1915A(b), the Court dismisses the 5 First Amended Complaint due to defects in pleading. 6 litigant in a civil rights case, however, must be given leave to 7 amend his or her complaint unless “it is absolutely clear that the 8 deficiencies of the complaint cannot be cured by amendment.” 9 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and 10 internal quotation marks omitted). 11 A pro se See Accordingly, the First Amended Complaint is dismissed with leave to amend. 12 13 A. Plaintiff Fails To State A Claim Under The ADA 14 15 Plaintiff unsuccessfully attempts to state a claim for relief 16 under the ADA. Title II of the ADA, which “prohibits a ‘public 17 entity’ from discriminating against a ‘qualified individual with a 18 disability on account of that individual’s disability,’ [] covers 19 inmates in state prisons,” (Pennsylvania Dept. of Corr. v. Yeskey, 20 524 U.S. 206, 208 (1998) (quoting 42 U.S.C. § 12132)), but the 21 allegations here fail to state a claim. 22 23 24 To state a claim under § 12132 of Title II, a plaintiff must allege that: 25 26 “(1) he is an individual with a disability; (2) he is 27 otherwise qualified to participate in or receive the 28 benefit of some public entity’s services, programs, or 5 1 activities; (3) 2 participation in or denied the benefits of the public 3 entity’s 4 otherwise discriminated against by the public entity; 5 and 6 discrimination was by reason of [his] disability.” services, (4) such he was either programs, exclusion, or excluded activities, denial of from or benefits, was or 7 8 Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 9 2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th 10 Cir. 2004)). In order to allege that Plaintiff is disabled under 11 the ADA, he must demonstrate that he has been diagnosed with a 12 condition that substantially limits his life activities. 13 v. Abbott, 524 U.S. 624, 631 (1998); see also Weaving v. City of 14 Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (“A 2008 Amendment 15 to the ADA provides, ‘The definition of disability in this chapter 16 shall be construed in favor of broad coverage . . .’ ‘The term 17 ‘substantially limits’ shall be interpreted consistently with the 18 [amendment].’”) (citing 42 U.S.C. § 12102(4)(A-B)). Bragdon 19 20 “The ADA prohibits discrimination because of disability, not 21 inadequate treatment for disability.” Simmons, 609 F.3d at 1022 22 (emphasis added). 23 under the ADA. 24 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s 25 simply failing to attend to the medical needs of its disabled 26 prisoners . . . The ADA does not create a remedy for medical 27 malpractice.”). 28 \\ Insufficient medical care does not state a claim Id.; see also Bryant v. Madigan, 84 F.3d 246, 249 6 1 Here, Plaintiff’s ADA claim fails because the First Amended 2 Complaint does not allege that Plaintiff was denied access to a 3 governmental benefit because of his disability. Instead, Plaintiff 4 claims 5 Plaintiff must allege facts showing that the prison’s purported 6 refusal to accommodate his disability prevented him from enjoying 7 the benefits of services, programs or activities provided to non- 8 disabled prisoners, and that he was discriminated against because 9 of his disability. that Marciano and Beatres provided substandard care. 10 11 Additionally, “Title II authorizes suits by private citizens,” 12 including prisoners, only “for money damages against public 13 entities that violate § 12132.” 14 151, 154 (2006) (sovereign immunity does not protect states from 15 ADA claims by state prisoners). 16 relief. 17 leave to amend. United States v. Georgia, 546 U.S. Plaintiff does not seek monetary Accordingly, Plaintiff’s ADA claim is dismissed, with 18 19 B. Plaintiff Fails To State A Cruel And Unusual Punishment Claim 20 21 Plaintiff broadly claims that he was subjected to “cruel and 22 unusual punishment.” (FAC at 3, 5). 23 have included forced labor and a violation of some unidentified 24 provision of the California Code of Regulations. 25 is unclear whether Plaintiff is raising this claim against only 26 Anderson and Cavillo, or all of the Defendants. 27 28 7 This punishment appears to (Id. at 5). It 1 Infliction of suffering on prisoners that is “totally without 2 penological justification” violates the Eighth Amendment. 3 v. Chapman, 452 U.S. 337, 346 (1981) (citation omitted). 4 unnecessary and wanton infliction of pain . . . constitutes cruel 5 and unusual punishment forbidden by the Eighth Amendment.” 6 v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and 7 citation omitted). 8 and 9 [A]mendment.” barbarous Rhodes Only “the Whitley The pain must amount to “the type of shocking treatment protected against by the [E]ighth Grummett v. Rushen, 779 F.2d 491, 494 n.1 (9th Cir. 10 1985). To state an Eighth Amendment claim, a prisoner must allege 11 that prison officials acted with deliberate indifference to a 12 substantial risk of serious harm. 13 828 (1994). 14 they know of and disregard an excessive risk to an inmate’s safety 15 or health. Farmer v. Brennan, 511 U.S. 825, Prison officials manifest deliberate indifference if Id. at 837. 16 17 Here, Plaintiff alleges that Anderson and Cavillo “forced 18 [him] to work using chemicals.” (FAC at 5). The First Amended 19 Complaint fails to show whether the chemicals or the work itself 20 posed any risk to Plaintiff’s health, which the Defendants knew 21 and deliberately ignored. 22 attempting to assert that Defendants violated a safety regulation, 23 the First Amended Complaint does not specify which regulation was 24 allegedly violated. 25 28. 26 state regulation is not itself a constitutional violation. 27 Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1052 (9th Cir. 28 2002). Also, to the extent that Plaintiff is See California Code of Regulations, Titles 1- However, Plaintiff is advised that the failure to follow a See Because Plaintiff does not allege “shocking and barbarous” 8 1 conduct by any Defendant that would rise to the level of a 2 constitutional violation, the First Amended Complaint fails to 3 state a cruel and unusual punishment claim. 4 668 F.3d 1108, 1113 (9th Cir. 2012) (citation omitted). 5 the First Amended Complaint must be dismissed, with leave to amend. See Watison v. Carter, Therefore, 6 7 C. 8 Plaintiff Fails To State An Eighth Amendment Claim For Deliberate Indifference To Serious Medical Needs 9 10 Plaintiff further alleges that Defendants were deliberately 11 indifferent to his serious medical needs in violation of the Eighth 12 Amendment. Defendants allegedly failed to provide adequate medical 13 care 14 deteriorating 15 deliberate indifference claim is defective. for Plaintiff’s health. bunion, (FAC which at led, 3-6). in part, However, to his Plaintiff’s 16 17 To state a claim for unconstitutional health care services, a 18 prisoner must demonstrate that the defendants were “deliberately 19 indifferent” to his “serious medical needs.” 20 F.3d 1091, 1096 (9th Cir. 2006). To establish a “serious medical 21 need,” that 22 prisoner’s condition could result in further significant injury or 23 the ‘unnecessary and wanton infliction of pain.’” 24 at 1096 (citation omitted); see also Morgan v. Morgensen, 465 F.3d 25 1041, 1045 (9th Cir. 2006) (the existence of a serious medical need 26 is determined by an objective standard). the prisoner must show 27 28 9 Jett v. Penner, 439 “failure to treat [the] Jett, 439 F.3d 1 To establish “deliberate indifference” to such a need, the 2 prisoner must demonstrate: “(a) a purposeful act or failure to 3 respond to a prisoner’s pain or possible medical need, and (b) harm 4 caused by the indifference.” 5 indifference “may appear when prison officials deny, delay or 6 intentionally interfere with medical treatment, or it may be shown 7 by the way in which prison physicians provide medical care.” 8 (citation omitted). 9 to provide adequate medical care” alone does not state a claim. Jett, 439 F.3d at 1096. Deliberate Id. Yet, an “inadvertent [or negligent] failure 10 Id. (citation omitted). 11 aware 12 disregarded that risk. 13 “isolated exception” to the defendant’s “overall treatment” of the 14 prisoner also does not state a deliberate indifference claim. 15 Jett, 439 F.3d at 1096. of a serious The defendant must have been subjectively risk of harm and must have consciously See Farmer, 511 U.S. at 839 (1994). An 16 17 Here, even if Plaintiff’s impairments gave rise to “serious 18 medical needs,” the First Amended Complaint does not allege that 19 Marciano and Beatres were subjectively aware of, and deliberately 20 chose to ignore, these needs. 21 Complaint indicates Plaintiff’s symptoms were treated with medicine 22 and a cane. 23 the 24 deliberate indifference. 25 While the Defendants allegedly also failed to care for Plaintiff’s 26 bunion by denying him therapeutic shoes and access to an orthopedic 27 surgeon, a difference of opinion regarding treatment does not give 28 rise to a deliberate indifference claim. (FAC at 7, 14-15). medicine “deteriorated On the contrary, the First Amended Plaintiff’s vague allegations that his health” fail to demonstrate (Id. at 3-4); Farmer, 511 U.S. at 835. 10 Fleming v. LeFevere, 423 1 F. Supp. 2d. 1064, 1070 (C.D. Cal 2006); see also Sanchez v. Vild, 2 891 F.2d 240, 242 (9th Cir. 1989). 3 conduct does not rise to the level of a constitutional violation 4 because the First Amended Complaint merely alleges that she lacked 5 compassion by yelling at Plaintiff. Additionally, Nurse Beatres’ (Id. at 3). 6 7 Plaintiff does not appear to allege deliberate indifference 8 claims against any of the other three Defendants. 9 because the First Amended Complaint acknowledges that Marciano and 10 Beatres took affirmative steps to investigate and treat Plaintiff’s 11 complaints, 12 dismissed with leave to amend. Plaintiff’s deliberate indifference Therefore, claims are 13 14 D. 15 Plaintiff Fails To State A Claim For Failure To Train And Supervise 16 17 Plaintiff alleges that Sibel knows of inmates who have died 18 as the result of medical staff “delaying [and] denying [their] 19 medical needs.” (FAC at 3). Plaintiff further alleges that Sibel 20 has “inform educate 21 Procedure.” failed to or her staff on Operational (Id. at 5). 22 23 To demonstrate a civil rights action against a government 24 official, a plaintiff must show either the official’s direct, 25 personal participation in the harm, or some sufficiently direct 26 connection 27 constitutional violation. 28 06 (9th Cir. 2011). between the official’s conduct and the alleged See Starr v. Baca, 652 F.3d 1202, 1205- A supervising officer such as Sibel must 11 1 personally take some action against the plaintiff or “set in motion 2 a series of acts by others . . . which [s]he knew or reasonably 3 should have known, would cause others to inflict the constitutional 4 injury” on the plaintiff. 5 630, 646 (9th Cir. 1991) (internal quotations omitted). 6 officials may not be held liable for the unconstitutional conduct 7 of their subordinates. 8 (2009). 9 his own culpable action or inaction in the training, supervision, Larez v. City of Los Angeles, 946 F.2d Government See Ashcroft v. Iqbal, 556 U.S. 662, 676 Rather, a supervisor may only be held accountable “for 10 or control of his subordinates, for his acquiescence in the 11 constitutional deprivations of which the complaint is made, or for 12 conduct that showed a reckless or callous indifference to the 13 rights of others.” 14 479 F.3d 1175, 1183 (9th Cir. 2007). Preschooler II v. Clark County Bd. of Trustees, 15 16 The First Amended Complaint does not allege facts that 17 establish that Sibel’s failure to train or supervise the Defendants 18 led to violations of Plaintiff’s constitutional rights. 19 claims that Sibel failed to educate her staff about “Operational 20 Procedure.” 21 referring 22 injuries, or how Sibel failed to train her staff. 23 allege specific facts showing what Sibel personally did or did not 24 do, and explain how her action or inaction caused a violation of 25 Plaintiff’s civil rights. Accordingly, the First Amended Complaint 26 must be dismissed with leave to amend. 27 \\ 28 \\ to, Plaintiff Plaintiff fails to explain which procedure he is why that procedure 12 is relevant to his alleged Plaintiff must 1 E. The First Amended Complaint Violates Rule 8 2 3 Federal Rule of Civil Procedure 8(a)(2) requires that a 4 complaint contain “‘a short and plain statement of the claim 5 showing that the pleader is entitled to relief,’ in order to ‘give 6 the defendant fair notice of what the . . . claim is and the 7 grounds upon which it rests.’” 8 544, 555 (2007) (citations omitted). 9 a pleading “says too little” and “when a pleading says too much.” 10 Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (emphasis in 11 original); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 12 Inc., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (a complaint violates 13 Rule 8 if a defendant would have difficulty understanding and 14 responding to the complaint). Bell Atlantic v. Twombly, 550 U.S. Rule 8 may be violated when 15 16 The First Amended Complaint violates Rule 8 because Plaintiff 17 does not clearly identify the nature of each of his legal claims, 18 the specific facts giving rise to each claim, or the specific 19 Defendant 20 Plaintiff also makes a passing reference to a mental health program 21 (“HOPE”) alleging that it is mere “propaganda,” intended to show 22 the “People of California” that the prison cares about inmates, 23 even though many are sick and “the elderly inmates [are] abused by 24 medical staff.” 25 program’s 26 information, 27 Complaint. 28 First Amended Complaint is dismissed, with leave to amend. or Defendants against (FAC at 5). relevance to Defendants his whom each claim is brought. Plaintiff does not explain the claims. cannot respond Without more to First the See Cafasso, 637 F.3d at 1058-59. 13 specific Amended Accordingly, the 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the First Amended Complaint is 5 dismissed with leave to amend. 6 this action, he is granted thirty (30) days from the date of this 7 memorandum 8 Complaint. 9 defects described above. and Order within If Plaintiff still wishes to pursue which to file a Second Amended In any amended complaint, Plaintiff shall cure the 10 11 Furthermore, Plaintiff shall omit any claims or allegations 12 that are not reasonably related to the claims asserted in the First 13 Amended 14 deficiencies 15 Complaint, if any, shall be complete in itself and shall bear both 16 the designation “Second Amended Complaint” and the case number 17 assigned to this action. 18 original Complaint. Complaint but addressed shall in instead this attempt Order. The to cure Second the Amended It shall not refer in any manner to the 19 20 In any amended complaint, Plaintiff should confine his 21 allegations to the operative facts supporting each of his claims. 22 Plaintiff 23 Procedure 8(a), all that is required is a “short and plain statement 24 of the claim showing that the pleader is entitled to relief.” 25 Plaintiff is strongly encouraged to utilize the standard civil 26 rights complaint form when filing any amended complaint, a copy of 27 which is attached. 28 identify the nature of each separate legal claim and make clear is advised that pursuant to Federal Rule of Civil In any amended complaint, Plaintiff should 14 1 what specific factual allegations support his claims. Plaintiff 2 is strongly encouraged to keep his statements concise and to omit 3 irrelevant details. 4 law or include legal argument. It is not necessary for Plaintiff to cite case 5 6 Plaintiff is explicitly cautioned that failure to timely file 7 a Second Amended Complaint, or failure to correct the deficiencies 8 described above, will result in a recommendation that this action 9 be dismissed with prejudice for failure to prosecute and obey Court 10 orders pursuant to Federal 11 Plaintiff is further advised that if he no longer wishes to pursue 12 this action he may voluntarily dismiss it by filing a Notice of 13 Dismissal in 14 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 15 convenience. accordance with Rule of Federal Civil Rule of Procedure Civil 41(b). Procedure 16 17 DATED: June 28, 2017 18 19 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 20 21 22 23 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 24 25 26 27 28 15

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