Foley v. Gerstel et al

Filing 7

ORDER Dismissing 1 Complaint, With Leave to File Amended Complaint Within Thirty Days, signed by District Judge David C. Bury on 2/18/2009. (Amended Complaint due by 3/23/2009). (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Tracy Romero Foley, Plaintiff, vs. K .M . Gerstel, et al., Defendants.

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N o . CV 1-08-769-DCB ORDER

P la in tiff Tracy Romero Foley, who is confined in the California State PrisonC o rc o ra n , has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1). T h is case was reassigned to the undersigned judge on November 24, 2008. The Court will d is m is s the Complaint with leave to amend. I. Statutory Screening of Prisoner Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). If the Court determines that a pleading could be cured by the a lle ga tio n of other facts, a pro se litigant is entitled to an opportunity to amend a complaint b e fo re dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000)

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(e n banc). The Court should not, however, advise the litigant how to cure the defects. This type o f advice "would undermine district judges' role as impartial decisionmakers." Pliler v. F o r d , 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide w h e th e r the court was required to inform a litigant of deficiencies). Plaintiff's Complaint w ill be dismissed for failure to state a claim, with leave to amend because the Complaint may p o ss ib ly be saved by amendment. II . C omplaint P la in tiff names Dentist K. M. Gerstel and Warden Ken Clark, who are employed at th e California State Prison-Corcoran, as Defendants in the Complaint. P lain tiff raises one claim for relief. Plaintiff claims that Defendant Gerstel told P lain tiff he didn't "have time for [] answers and what [did Plaintiff] need done" and before P lain tiff could lay back in the chair "pushed [Plaintiff] down by [his] forehead." Plaintiff s ta te s that Plaintiff moved to his left and told Defendant Gerstel not to push his head. P la in tiff states that Defendant Gerstel then told Plaintiff that he "did not have time for [P la in tiff's ] bull shit" and went over to another inmate. P la in t if f seeks money damages. II I. F a ilure to State a Claim A. D e fe nda nt Clark

T o state a valid claim under § 1983, plaintiffs must allege that they suffered a specific in ju ry as a result of specific conduct of a defendant and show an affirmative link between th e injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 ( 1 9 7 6 ) . To state a claim against a supervisory official, the civil rights complainant must a llege that the official personally participated in the constitutional deprivation or that a s u p e rvis o ry official was aware of widespread abuses and with deliberate indifference to the in m a te 's constitutional rights, failed to take action to prevent further misconduct. King v. A tiy e h , 814 F.2d 565, 568 (9th Cir. 1987); see Monell v. New York City Department of So c ia l Services, 436 U.S. 658, 691 (1978). There is no respondeat superior liability under -2-

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§ 1983, and therefore, a defendant's position as the supervisor of persons who allegedly vio la te d Plaintiff's constitutional rights does not impose liability. Monell, 436 U.S. 658; H a m ilto n v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1 0 4 5 (9th Cir. 1989). P la in tiff does not allege that Defendant Clark personally participated in the d e p rivatio n of Plaintiff's constitutional rights, was aware of widespread abuses and, with d e lib e ra te indifference, failed to act, or that Defendant Clark formed policies that resulted in Plaintiff's injuries. In fact, Plaintiff makes no allegations at all against Defendant Clark. P la in tif f has therefore failed to state a claim against Defendant Clark. B. M ed ica l Claims

In order to recover under § 1983, a plaintiff must show: (1) the violation of a right p ro te c te d by the Constitution or federal law; (2) that was proximately caused; (3) by conduct o f a "person" named as a defendant; (4) acting under color of state law. See Crumpton v. G ates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff has not alleged a violation of a c o n s titu tio n a l right in his claim. T o maintain a claim under the Eighth Amendment based on prison medical treatment, a prisoner must show deliberate indifference to serious medical needs. Estelle v. Gamble, 4 2 9 U.S. 97, 104 (1976). To act with deliberate indifference, a prison official must both kn o w of and disregard an excessive risk to inmate health. Farmer v. Brennan, 511 U.S. 825, 8 3 7 (1994). The official must both be aware of facts from which the inference could be d ra w n that a substantial risk of serious harm exists and he must also draw the inference. Id. T h is subjective approach focuses upon the mental attitude of the defendant. Id. at 839. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1 0 6 0 (9th Cir. 2004). In the medical context, deliberate indifference may be shown by (1) a p u rp o s e fu l act or failure to respond to a prisoner's pain or possible medical need and (2 ) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citin g Estelle, 429 U.S. at 104). Medical malpractice or negligence is insufficient to establish a violation. Toguchi, -3-

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3 9 1 F.3d at 1060. Thus, mere negligence in diagnosing or treating a condition does not viola te the Eighth Amendment. Toguchi, 391 F.3d at 1057. Also, an inadvertent failure to p ro vid e adequate medical care alone does not rise to the Eighth Amendment level. Jett, 429 F .3 d at 1096. A difference in medical opinion also does not amount to deliberate

in d iffe re n c e. Toguchi, 391 F.3d at 1058. To prevail on a claim involving choices between a ltern a tive courses of treatment, a prisoner must show that the chosen course was medically u n a c c e p ta b le under the circumstances and was chosen in conscious disregard of an excessive risk to the prisoner's health. Id. Plaintiff has failed to allege facts sufficient to state an Eighth Amendment medical d e lib e ra te indifference claim. Plaintiff has not described the nature of his dental needs and it is therefore impossible for the Court to assess whether Defendant Gerstel failed to respond to an excessive risk to Plaintiff's health. Further, Plaintiff has failed to describe what injury, if any, he suffered as a result of Defendant Gerstel's actions. Plaintiff has therefore failed to state a claim. IV . L e a v e to Amend F o r the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first am en d ed complaint on the form provided with this Order. If Plaintiff fails to use the form p ro vid e d with this Order, the Court may strike the amended complaint and dismiss this action w ith o u t further notice to Plaintiff. P la in t if f must clearly designate on the face of the document that it is the "First A m e n d e d Complaint." The amended complaint must be retyped or rewritten in its entirety o n the form provided with this Order and may not incorporate any part of the original C o m p la in t by reference. P lain tiff must comply with the instructions provided with the form. Plaintiff should p a y close attention to the instructions provided with the form. If Plaintiff fails to comply w ith the instructions provided with the form, the Court may strike the amended complaint an d dismiss this action without further notice to Plaintiff. -4-

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A m o n g other requirements contained in the instructions, Plaintiff is advised that the in s tru c tio n s require him to provide information regarding the Court's jurisdiction, provide in fo rm a tion about the defendants, and divide his lawsuit into separate counts. In each count, P la in tiff must identify what federal constitutional civil right was violated, identify the issue m o s t closely involved in that count, state which defendants violated that right and what those d e fe n d a n ts did to violate that right, explain how Plaintiff was injured by the alleged violation o f the constitutional right, and identify whether Plaintiff has exhausted any available a d m in is tra tive remedies. Plaintiff must repeat this process for each civil right that was violated . Plaintiff may allege only one claim per count. A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F . 2 d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1 5 4 6 (9th Cir. 1990). After amendment, the Court will treat an original complaint as n o n e x is te n t. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original c o m p la in t is waived if it is not raised in a first amended complaint. King, 814 F.2d at 567. V. W a r ning s A. A ddr e ss Changes

P lain tiff must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. Copies

P la in tiff must submit an additional copy of every filing for use by the Court. See LR C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tice to Plaintiff. C. Possible "Strike"

B e c a u se the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the d ismissal will count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). -5-

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U n d e r the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil ju d gm e n t in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior o c c as io n s , while incarcerated or detained in any facility, brought an action or appeal in a c o u r t of the United States that was dismissed on the grounds that it is frivolous, malicious, o r fails to state a claim upon which relief may be granted, unless the prisoner is under imm in en t danger of serious physical injury." 28 U.S.C. § 1915(g). D. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these w a rn in gs, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1 2 6 0 -6 1 (a district court may dismiss an action for failure to comply with any order of the C o u r t) . IT IS ORDERED: (1) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff has

3 0 days from the date this Order is filed to file an amended complaint in compliance with this Order. (2 ) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

C o u rt must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g). (3 ) T h e Clerk of Court must include with this Order a copy of this judge's required

form for filing a civil rights complaint by a prisoner. D A T E D this 18 th day of February, 2009.

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