Will Moss, Jr. v. C. Enizel et al

Filing 14

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Complaint (Prisoner Civil Rights), 1 . (Attachments: # 1 Notice of Dismissal Form, # 2 civil rights complaint form) (dts) Modified on 1/11/2018 (dts). (Main Document 14 replaced on 1/11/2018) (dts).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 Case No. EDCV 17-2144-PSG (KK) WILL MOSS, JR., 10 Plaintiff, 11 v. 12 ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND C. ENTZEL, ET AL., 13 Defendants. 14 15 16 17 I. 18 INTRODUCTION On December 22, 2017, Plaintiff Will Moss, Jr. (“Plaintiff”), an inmate in 19 20 the custody of the Bureau of Prisons at Victorville Medium II (“Victorville”), 21 proceeding pro se and in forma pauperis, constructively filed1 a First Amended 22 Complaint (“FAC”) against various defendants for a delay in receiving new 23 eyeglasses. The Court has now screened the FAC pursuant to 28 U.S.C. § 24 25 26 27 28 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”); Mayer v. Redix, No. CIV S-10-1552 GGH P, 2012 WL 360202, at *7 n.22 (E.D. Cal. Feb. 2, 2012) on reconsideration, No. CIV S-10-1552 GGH P, 2012 WL 1082044 (E.D. Cal. Mar. 30, 2012) (applying “mailbox rule” to Bivens action). 1 1 1915A(a). For the reasons discussed below, the Court dismisses the FAC with 2 leave to amend. 3 II. 4 BACKGROUND On October 1, 2017, Plaintiff constructively filed a Complaint against 5 6 defendants C. Entzel, F. Garrido, R. Poyner, and [FNU] Langel, each in their 7 official capacity, and the Federal Bureau of Prisons. Dkt. 1, Compl. at 3-4. On December 22, 2017, Plaintiff constructively filed the FAC pursuant to 8 9 Bivens2 against defendants C. Entzel, F. Garrido, R. Poyner, K. Leen, and [FNU] 10 Langel (collectively, “Individual Defendants”), each in their official and individual 11 capacities. Dkt. 13, FAC at 2-3. The FAC also names the Federal Bureau of 12 Prisons as a defendant. Id. at 3. Plaintiff claims he “suffers visual impairment by being legally blind in his 13 14 right eye and a refractory error in his left which requires at all times corrective as 15 well as protective prescription eye glasses for the protection of his left eye due to a 16 birth defect.” Id. at 4. Plaintiff alleges his eyeglasses broke on August 9, 2016 17 when he was “out to court” in the Sacramento California Main County Jail, and 18 when he returned to Victorville “on or about January 9, 2017, he requested a new 19 pair of glasses.” Id. Plaintiff alleges despite him following up on his request for new eyeglasses 20 21 and his “worsening and debilitating headaches” from not having his eyeglasses 22 with multiple prison officials, the Individual Defendants failed to address his 23 requests and/or chose to “purposely and willfully ignore Plaintiff’s requests,” 24 causing him “severe injury,” and “putting him at risk of irreparable harm” for 25 “los[s] of his sight or decreased vision of his ‘good’ eye due to the stress and strain 26 27 28 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). 2 2 1 he has put on it,” which “may have already cause[d] him irreparable harm.” Id. at 2 11-12. 3 Plaintiff seeks a preliminary and permanent injunction “to provide Plaintiff 4 with his glasses immediately.” Id. at 13. Plaintiff also seeks compensatory damages 5 and punitive damages against each defendant. Id. 6 III. 7 STANDARD OF REVIEW 8 9 As Plaintiff is a prisoner who has filed a civil action seeking “redress from a governmental entity or officer of employee of a governmental entity,” the Court 10 must screen the Complaint and is required to dismiss the case at any time if it 11 concludes the action is frivolous or malicious, fails to state a claim on which relief 12 may be granted, or seeks monetary relief against a defendant who is immune from 13 such relief. 28 U.S.C. § 1915A(a). 14 In determining whether a complaint fails to state a claim for screening 15 purposes, the Court applies the same pleading standard from Rule 8 of the Federal 16 Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to 17 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 18 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a 19 “short and plain statement of the claim showing that the pleader is entitled to 20 relief.” Fed. R. Civ. P. 8(a)(2). 21 A complaint may be dismissed for failure to state a claim “where there is no 22 cognizable legal theory or an absence of sufficient facts alleged to support a 23 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 24 considering whether a complaint states a claim, a court must accept as true all of 25 the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th 26 Cir. 2011). However, the court need not accept as true “allegations that are merely 27 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 28 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 3 Although a complaint need not include detailed factual allegations, it “must 1 2 contain sufficient factual matter, accepted as true, to state a claim to relief that is 3 plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) 4 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 5 (2009)). A claim is facially plausible when it “allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 7 The complaint “must contain sufficient allegations of underlying facts to give fair 8 notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 9 652 F.3d 1202, 1216 (9th Cir. 2011). “A document filed pro se is to be liberally construed, and a pro se complaint, 10 11 however inartfully pleaded, must be held to less stringent standards than formal 12 pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 13 2008). However, liberal construction should only be afforded to “a plaintiff’s 14 factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 15 104 L. Ed. 2d 339 (1989), and the Court need not accept as true “unreasonable 16 inferences or assume the truth of legal conclusions cast in the form of factual 17 allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). If the court finds the complaint should be dismissed for failure to state a 18 19 claim, the court has discretion to dismiss with or without leave to amend. Lopez v. 20 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted 21 if it appears possible the defects in the complaint could be corrected, especially if 22 the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 23 1106 (9th Cir. 1995). If, however, after careful consideration, it is clear a complaint 24 cannot be cured by amendment, the court may dismiss without leave to amend. 25 Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 26 Cir. 2009). 27 /// 28 /// 4 1 IV. 2 DISCUSSION 3 A. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER 4 BIVENS AGAINST THE FEDERAL BUREAU OF PRISON, OR THE 5 INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITY 6 The Supreme Court has recognized an implied cause of action against 7 certain federal officials for certain constitutional violations. See Bivens, 403 U.S. 8 388. However, a Bivens claim is not available against federal agencies or federal 9 agents sued in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486, 510 10 U.S. 471, 486, 114 S. Ct. 996, 1006, 127 L. Ed. 2d 308 (1994) (no Bivens action 11 against federal agencies); Consejo de Desarrollo Economico de Mexicali, A.C. v. 12 United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (no Bivens action against federal 13 agents in their official capacity). Hence, Plaintiff’s claims for relief under Bivens 14 against the Federal Bureau of Prisons, and the Individual Defendants in their 15 official capacity must be dismissed. 16 B. PLAINTIFF FAILS TO ALLEGE AN EIGHTH AMENDMENT 17 DELIBERATE INDIFFERENCE CLAIM AGAINST DEFENDANTS 18 ENTZEL, GARRIDO, AND LEEN IN THEIR INDIVIDUAL 19 CAPACITY 20 1. 21 Prison officials or private physicians under contract to treat inmates “violate Applicable Law 22 the Eighth Amendment if they are ‘deliberately indifferent to a prisoner’s serious 23 medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) 24 (alterations omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 25 L. Ed. 2d 251 (1976)); see also Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 26 1970, 128 L. Ed. 2d 811 (1994). To assert a deliberate indifference claim, a prisoner 27 plaintiff must show the defendant: (1) deprived him of an objectively serious 28 medical need, and (2) acted with a subjectively culpable state of mind. Wilson v. 5 1 Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). Specifically, 2 Plaintiff must present facts that demonstrate the prison officials’ indifference to his 3 medical needs was both “purposeful” and “substantial” in nature. Ruvalcaba v. 4 City of L.A., 167 F.3d 514, 525 (9th Cir. 1999) (citations omitted). 5 “A medical need is serious if failure to treat it will result in ‘significant injury 6 or the unnecessary and wanton infliction of pain.’” Peralta, 744 F.3d at 1081 7 (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). “A prison official is 8 deliberately indifferent to [a serious medical] need if he ‘knows of and disregards 9 an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer, 511 U.S. at 837). 10 The “official must both be aware of facts from which the inference could be drawn 11 that a substantial risk of serious harm exists, and he must also draw the inference.” 12 Farmer, 511 U.S. at 837. 13 Deliberate indifference “requires more than ordinary lack of due care.” 14 Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Farmer, 511 15 U.S. at 835). “Deliberate indifference ‘may appear when prison officials deny, 16 delay, or intentionally interfere with medical treatment, or it may be shown by the 17 way in which prison physicians provide medical care.’” Id. (quoting Hutchinson v. 18 United States, 838 F.2d 390, 394 (9th Cir. 1988)). In either case, however, the 19 indifference to the inmate’s medical needs must be substantial – negligence, 20 inadvertence, or differences in medical judgment or opinion do not rise to the level 21 of a constitutional violation. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 22 2004) (negligence constituting medical malpractice is not sufficient to establish an 23 Eighth Amendment violation). 24 “When medical treatment is delayed rather than denied, the delay generally 25 amounts to deliberate indifference only if it caused harm.” Garcia v. Cate, No. 26 EDCV 13-1610-JFW (MAN), 2015 WL 5998607, at *15 (C.D. Cal. June 4, 2015) 27 (first citing McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on 28 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); then 6 1 citing Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); and then citing 2 Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) 3 (stating that a prisoner alleging deliberate indifference to serious medical needs 4 based on a delay in treatment must show that the delay in treatment caused further 5 injury)). 6 2. 7 Here, Plaintiff alleges he has not been provided new eyeglasses since he 8 requested them in February 2017. FAC at 5-6, 11. However, Plaintiff fails to allege 9 facts establishing defendants Entzel, Garrido, and Leen were deliberately Analysis 10 indifferent by denying, delaying, or intentionally interfering with his medical 11 treatment. See Colwell, 763 F.3d at 1066. To the contrary, the facts alleged 12 demonstrate defendants Entzel, Garrido, and Leen provided appropriate directions 13 and responses when Plaintiff raised the issue regarding his eyeglasses. 14 With respect to defendant Entzel, Plaintiff alleges he addressed his need for 15 prescription eyeglasses and the headaches he suffered from not having them with 16 defendant Entzel on or about June 20, 2017. FAC at 6, ¶ 22. Plaintiff claims, 17 “[a]fter listening to Plaintiff’s issue,” defendant Entzel then “directed” Plaintiff 18 to address his issue with then-Health Services Administrator, defendant Leen. Id. 19 Hence, Plaintiff fails to allege that any action (or inaction) by defendant Entzel 20 denied, delayed, or intentionally interfered with his medical treatment. 21 With respect to defendant Garrido, Plaintiff alleges he addressed the issue of 22 not receiving eyeglasses with defendant Garrido on or about July 6, 2017. Id. at 7, ¶ 23 27. Defendant Garrido responded by advising Plaintiff “his issue would be taken 24 care of.” Id. Thereafter, on or about September 6, 2017, defendant Garrido 25 further “addressed the issue with Plaintiff and assured him that his glasses were 26 ordered and should be received shortly.” Id. at 9, ¶ 35. Hence, Plaintiff fails to 27 allege any action (or inaction) by defendant Garrido denied, delayed, or 28 intentionally interfered with his medical treatment. 7 Finally, with respect to defendant Leen, the former Health Services 1 2 Administrator, Plaintiff alleges he addressed the issue of eyeglasses with defendant 3 Leen on or about June 20, 2017. Id. at 6. Defendant Leen advised Plaintiff that 4 eyeglasses “usually take[] up to 6-8 months3 to receive.” Id. at 6, ¶ 23. Hence, 5 Plaintiff fails to allege any action (or inaction) by defendant Leen denied, delayed, 6 or intentionally interfered with his medical treatment. Accordingly, Plaintiff fails to state a deliberate indifference claim against 7 8 defendants Entzel, Garrido, and Leen. Hence, the claim for deliberate indifference 9 against defendants Entzel, Garrido, and Leen in their individual capacity must be 10 dismissed. 11 C. PLAINTIFF FAILS TO ALLEGE AN EIGHTH AMENDMENT 12 DELIBERATE INDIFFERENCE CLAIM AGAINST DEFENDANT 13 LANGEL IN HIS INDIVIDUAL CAPACITY 14 1. 15 Actions in reviewing and denying administrative appeals or grievances do not 16 necessarily cause or contribute to a constitutional violation. See Ramirez v. Galaza, 17 334 F.3d 850, 861 (9th Cir. 2003) (“Inmates lack a separate constitutional 18 entitlement to a specific prison grievance procedure.”); Mann v. Adams, 855 F.2d 19 639, 640 (9th Cir. 1998) (“There is no legitimate claim of entitlement to a 20 grievance procedure.”). Rather, a plaintiff can only “establish liability on the part 21 of defendants involved in the administrative grievance process under the Eighth 22 Amendment by alleging his appeal put defendants on notice that he had a serious 23 medical need that was not being met, and their denial, therefore, constituted 24 deliberate indifference to his medical need.” Brammer v. Yates, No. F-07-1350 Applicable Law 25 26 27 28 While Plaintiff may be frustrated with the length of time it has taken to provide him with new eyeglasses, he was advised that it would “probably take awhile” to receive them and that eyeglasses “usually take[] up to 6-8 months to receive.” FAC at 5-6, ¶¶ 20, 23. Hence, the delay, while arguably unfortunate, does not seem extraordinary or otherwise unusual. 8 3 1 GBC (PC), 2011 WL 5873393, at *5 (E.D. Cal. No. 22, 2011). However, 2 involvement in reviewing an inmate’s administrative appeal does not necessarily 3 demonstrate awareness of the alleged violation to constitute deliberate indifference. 4 Peralta, 744 F.3d at 1086-87. 5 2. Analysis 6 Plaintiff alleges a deliberate indifference claim against defendant Langel, the 7 Case Management Coordinator and Administrative Remedy Coordinator, for 8 rejecting Plaintiff’s Administrative Remedy Request for eyeglasses. FAC at 10. 9 Specifically, on September 25, 2017, defendant Langel rejected Plaintiff’s request 10 on procedural grounds that Plaintiff “did not attempt an informal resolution or 11 provide evidence of an information resolution-attempt” and failed to provide the 12 required four copies of his continuance. Id.; Ex. C. While Plaintiff appears to 13 allege that defendant Langel was present during “discussions” at SHU meetings, 14 Plaintiff fails to allege that defendant Langel was aware of a serious medical need 15 for eyeglasses that she then deliberately disregarded in denying the Administrative 16 Remedy Request. See id. at 10. Instead, Plaintiff only claims defendant Langel 17 “should have been fully apprised of all the informal resolution attempts” that 18 Plaintiff made “as well as his restriction of making the required 4 copies of his 19 continuance due to being in SHU.” Id. (emphasis added). 20 Accordingly, Plaintiff fails to allege that defendant Langel was aware of a 21 serious medical need that she then disregarded. Hence, the claim for deliberate 22 indifference against defendant Langel in her individual capacity must be dismissed. 23 V. 24 LEAVE TO FILE A SECOND AMENDED COMPLAINT 25 For the foregoing reasons, the Complaint is subject to dismissal. As the 26 Court is unable to determine whether amendment would be futile, leave to amend 27 is granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 28 curiam). 9 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 1 2 service date of this Order, Plaintiff choose one of the following three options: 1. 3 Plaintiff may voluntarily dismiss the action without prejudice, 4 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed 5 to mail Plaintiff a blank Notice of Dismissal Form, which the Court 6 encourages Plaintiff to use. 2. 7 Alternatively, Plaintiff may proceed on the Eighth Amendment 8 deliberate indifference claim against defendant Poyner in his individual capacity 9 only. If Plaintiff intends to select this option, he must file a statement clearly 10 indicating his wish to proceed on this claim only and voluntarily dismiss all 11 other claims and defendants. 3. 12 Alternatively, Plaintiff may file a Second Amended Complaint to 13 attempt to cure the deficiencies discussed above. The Clerk of Court is directed 14 to mail Plaintiff a blank Central District civil rights complaint form to use for 15 filing the Second Amended Complaint, which the Court encourages Plaintiff to 16 use. 17 If Plaintiff chooses to file a Second Amended Complaint, Plaintiff must 18 clearly designate on the face of the document that it is the “Second Amended 19 Complaint,” it must bear the docket number assigned to this case, and it must be 20 retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff 21 shall not include new defendants or new allegations that are not reasonably related 22 to the claims asserted in the FAC. In addition, the Second Amended Complaint 23 must be complete without reference to the FAC, or any other pleading, 24 attachment, or document. 25 An amended complaint supersedes the preceding complaint. Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will 27 treat all preceding complaints as nonexistent. Id. Because the Court grants 28 Plaintiff leave to amend as to all his claims raised here, any claim raised in a 10 1 preceding complaint is waived if it is not raised again in the Second Amended 2 Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 3 The Court advises Plaintiff that it generally will not be well-disposed toward 4 another dismissal with leave to amend if Plaintiff files a Second Amended 5 Complaint that continues to include claims on which relief cannot be granted. “[A] 6 district court’s discretion over amendments is especially broad ‘where the court 7 has already given a plaintiff one or more opportunities to amend his complaint.’” 8 Ismail v. Cty. of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012); see also 9 Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Second Amended Complaint 10 with claims on which relief cannot be granted, the Second Amended 11 Complaint will be dismissed without leave to amend and with prejudice. 12 Plaintiff is explicitly cautioned that failure to timely file a Second 13 Amended Complaint will result in this action being dismissed with prejudice 14 for failure to state a claim, prosecute and/or obey Court orders pursuant to 15 Federal Rule of Civil Procedure 41(b). 16 17 18 Dated: January 11, 2018 HONORABLE KENLY KIYA KATO United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 11

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