Obujen v. CDC et al

Filing 16

FINDINGS and RECOMMENDATIONS recommending DISMISSAL of this action, WITH PREJUDICE, for failure to state a claim under section 1983 re 15 Amended Complaint filed by Douglas Obujen; Motion referred to Judge Ishii,signed by Magistrate Judge Sandra M. Snyder on 04/06/2009. (Objections to F&R due by 5/11/2009) (Martin, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Findings and Recommendations Following Screening of Amended Complaint 16 I. 17 Plaintiff Douglas Obujen is a former state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 6, 2007. The Court dismissed 19 Plaintiff's complaint, with leave to amend, for failure to state a claim on May 15, 2008, and Plaintiff 20 filed an amended complaint on June 13, 2008. 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 26 /// 27 28
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UNITED STATES DISTRICT COURT

DOUGLAS OBUJEN, Plaintiff, v. CDC, et al.,

CASE NO. 1:07-cv-01308-AWI-SMS PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 15)

Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS /

Screening Requirement

governmental entity or officer or employee of a governmental entity.1 28 U.S.C. § 1915A(a). The

Plaintiff was incarcerated when he brought this suit.

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). II. Plaintiff's Eighth Amendment Medical Care Claim At the time of the events giving rise to the claim at issue in this action, Plaintiff was housed at Avenal State Prison. Plaintiff alleges a violation of the Eighth Amendment of the United States Constitution against Defendant Doe, who was the Chief Medical Officer at Avenal on or around September 2006. Plaintiff alleges a claim for denial of adequate medical care for pneumonia, Valley Fever, pleurisy, and whooping cough, which caused Plaintiff to lose thirty pounds in two weeks. "[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "`a serious medical need' by demonstrating that `failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). As Plaintiff was previously notified, Plaintiff is required to show that the named defendant(s) 2

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(1) acted under color of state law, and (2) committed conduct which deprived Plaintiff of a federal right. Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007). "A person deprives another of a constitutional right, where that person `does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'" Id. at 988 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). "[T]he `requisite causal connection can be established not only by some kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Id. (quoting Johnson at 743-44). Further, "there is no pure respondeat superior liability under § 1983, [and] a supervisor [may only be held] liable for the constitutional violations of subordinates `if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.'" Id. (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Plaintiff has not alleged any facts linking Defendant Doe to acts or omissions which support a claim that Defendant acted with deliberate indifference to Plaintiff's serious medical needs. Generalized allegations of neglect, and that Avenal State Prison knew of the risk of Valley Fever but failed to do anything about it are insufficient to support a claim against Defendant Doe. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007) (citations omitted). Because Plaintiff has not alleged sufficient facts to support a claim that Defendant Doe "[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health . . . ," Plaintiff fails to state a claim against Defendant for violation of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 837, 114 S.Ct. 1970 (1994). III. Conclusion and Recommendation Plaintiff's amended complaint fails to state a claim against Defendant Doe for violation of the Eighth Amendment, or for any other federal violation. Because Plaintiff was previously notified of the deficiencies in his claim but did not cure them in his amended complaint, the Court HEREBY /// 3

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RECOMMENDS dismissal of this action, with prejudice, for failure to state a claim under section 1983. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: icido3 April 6, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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