Farries v. Cate et al

Filing 8

ORDER DISMISSING 1 Complaint, With Prejudice, for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 9/9/2009. CASE CLOSED. (Sant Agata, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff Richard Farries is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on November 13, 2008 and consented to the jurisdiction of a U.S. magistrate judge on January 9, 2009. I. Screening Requirement The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 915(e)(2)(B)(ii). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited v. MATTHEW CATE, et al., (Doc. 1) Defendants. / RICHARD FARRIES, Plaintiff, ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM CASE NO. 1:08-cv-01733-GSA PC

UNITED STATES DISTRICT COURT

28 exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 1

1 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of 2 the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a 3 statement must simply give the defendant fair notice of what the plaintiff's claim is and the 4 grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not 5 required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere 6 conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 7 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth 8 sufficient factual matter accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 9 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, 10 legal conclusions are not. Ibid. 11 Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to

12 relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the 13 grounds of his entitlement to relief," which "requires more than labels and conclusions, and a 14 formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks 15 and citations omitted). To adequately state a claim against a defendant, plaintiff must set forth the 16 legal and factual basis for his claim. 17 In screening a complaint, a court may dismiss a complaint only if it is clear that no relief

18 could be granted under any set of facts that could be proved consistent with the allegations. Id. at 19 514. "`The issue is not whether a plaintiff will ultimately prevail but whether the claimant is 20 entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings 21 that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 22 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. 23 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("`Pleadings need suffice only to put the opposing 24 party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 25 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual 26 allegations." Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a 27 civil rights complaint may not supply essential elements of the claim that were not initially pled." 28 /// 2

1 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997), quoting Ivey v. Bd. of 2 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 II. 4 5 Plaintiff's Claim - Deliberate Indifference to Serious Medical Needs A. Factual background

Plaintiff, who is no longer in prison, was incarcerated at Wasco State Prison ("Wasco")

6 from August 2007 through November 2007. While incarcerated, plaintiff's alleges that his 7 diabetes was improperly tested, the wrong medication was provided, and the medication was not 8 provided on a regular basis. In addition, plaintiff was denied an appropriate mattress, 9 exacerbating the condition of his fused back and knee replacements. 10 Plaintiff asserts that his improper treatment resulted from defendants' negligence and

11 incompetence. Plaintiff names as defendants the California Department of Corrections and 12 Rehabilitation ("CDCR"); Matthew Cate, secretary of CDCR; Robin Dezember, chief deputy of 13 CDCR Health Care Services; P.L. Vazquez, Wasco's warden; and Andrew Zepp, M.D., a medical 14 doctor at Wasco. 15 16 17 B. Defendants 1. Supervisory and Administrative Personnel­Cate, Dezember, Vazquez

Defendants Cate, Dezember, Vazquez, and possibly Zepp1 are administrative or

18 supervisory employees of CDCR. Supervisory personnel are generally not liable under § 1983 for 19 the actions of their employees under a theory of respondeat superior. Taylor v. List, 880 F.2d 20 1040, 1045 (9th Cir. 1989). 21 For defendants in supervisory positions, a plaintiff must specifically allege a causal link

22 between each defendant and his claimed constitutional violation. See Fayle v. Stapley, 607 F.2d 23 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 24 U.S. 941 (1979). To state a claim for relief under § 1983 for supervisory liability, a plaintiff must 25 allege facts indicating that each supervisory defendant either personally participated in the alleged 26 27 28
Because plaintiff identifies Zepp only as a medical doctor at W a s c o , the court is unable to determine w h e t h e r plaintiff sues Zepp as a doctor who directly treated plaintiff, or as an administrator or supervisor in the W a s c o medical department, or both.
1

3

1 deprivation of the plaintiff's constitutional rights, knew of the violations and failed to act to 2 prevent them, or promulgated or "implemented a policy so deficient that the policy `itself is a 3 deprivation of constitutional rights' and is `the moving force of the constitutional violation.'" 4 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor, 880 F.2d 5 at 1045. 6 7 2. CDCR

Plaintiff may not sustain an action against CDCR. The Eleventh Amendment prohibits

8 federal courts from hearing suits brought against an unconsenting state. Brooks v. Sulphur 9 Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991), cert. denied, 503 U.S. 938 (1992). 10 See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Puerto Rico Aqueduct and 11 Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. 12 System, 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against state 13 agencies as well as those where the state itself is named as a defendant. See Natural Resources 14 Defense Council v. California Dep't of Transp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 15 F.2d at 1053; Taylor, 880 F.2d at 1045 (concluding that Nevada Department of Prisons was a state 16 agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Comm. College 17 Dist., 861 F.2d 198, 201 (9th Cir.), cert. denied, 490 U.S. 1081 (1989). Because CDCR is a state 18 agency, it is entitled to Eleventh Amendment immunity from suit. 19 20 3. Linking Defendants with Claims.

In a § 1983 action, a plaintiff must tie each defendant's actions to the specific harms he or

21 she is alleged to have caused to plaintiff. Section 1983 provides: 22 23 24 42 U.S.C. § 1983. 25 Section 1983 plainly requires an actual connection or link between each defendant's 26 actions and the harm allegedly done to the plaintiff. See Monell v. Department of Social Services, 27 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person `subjects' another to the 28 4 Every person who, under color of [state law] . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

1 deprivation of a constitutional right, within the meaning of §1983, if he does an affirmative act, 2 participates in another's affirmative act or omits to perform an act which he is legally required to 3 do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 4 (9th Cir. 1978). General allegations based on CDCR's general shortcomings as set forth in the 5 Plata2 cases are not sufficient to state a claim for the specific harms that plaintiff incurred while a 6 Wasco inmate. 7 8 "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 9 (9th Cir. 2004). "Under this standard, the prison official must not only `be aware of the facts from 10 which the inference could be drawn that a substantial risk of serious harm exists,' but that person 11 `must also draw the inference.'" Id. at 1057, quoting Farmer v. Brennan, 511 U.S. 825, 837 12 (1994). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth 13 Amendment violation unless (1) "the prison official deprived the prisoner of the `minimal 14 civilized measure of life's necessities,'" and (2) "the prison official `acted with deliberate 15 indifference in doing so.'" Toguchi, 391 F.3d at 1057, quoting Hallett v. Morgan, 296 F.3d 732, 16 744 (9th Cir. 2002) (citation omitted). A prison official does not act in a deliberately indifferent 17 manner unless the official "knows of and disregards an excessive risk to inmate health or safety." 18 Farmer, 511 U.S. at 834. Deliberate indifference may be manifested "when prison officials deny, 19 delay or intentionally interfere with medical treatment," or in the manner "in which prison 20 physicians provide medical care." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 21 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 22 banc). 23 /// 24 /// 25 26 27 28
2 Plaintiff refers to, but does not cite to, Plata v. Schwarzenegger cases from 2001 and 2002. The court has b e e n unable to identify any case of that title from 2001 or 2002 but understands plaintiff to refer to two lines of c a s e s, Plata v. Schwarzenegger and Coleman v. Schwarzenegger, class action suits addressing the provision of m e d ic a l and mental health care provided in California state prisons.

C.

Eighth Amendment Claim ­ Deliberate Indifference to Serious Medical Needs.

5

1

Plaintiff here alleges negligence and incompetence against defendants whose collective

2 care of plaintiff exacerbated plaintiff's suffering from his diabetes and orthopedic conditions. 3 3 "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition 4 does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical 5 malpractice does not become a constitutional violation merely because the victim is a prisoner." 6 Estelle v. Gamble, 429 U.S. 97, 106 (1976). See also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 7 2006); Toguchi, 391 F.3d at 1057, 1060 (stating that "[d]eliberate indifference is a high legal 8 standard."); Clement v. Gomez, 298 F.3d 898, 904-05 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 9 1122, 1131 (9th Cir. 2000) (en banc); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998); 10 Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir.), amended, 75 F.3d 448 (9th Cir.), cert. 11 denied, 516 U.S. 916 (1997)(en banc); McGuckin, 974 F.2d at 1059; Hutchinson v. United 12 States, 838 F.2d 390, 394 (9th Cir. 1998); Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 13 1986), cert. denied, 481 U.S. 1069 (1987), abrogated on other grounds by Sandin v. Connor, 515 14 U.S. 472 (1995). Even gross negligence is insufficient to establish deliberate indifference to 15 serious medical needs. See Toguchi, 391 F.3d at 1060. 16 Plaintiff's claims, which sound in medical malpractice, do not state an Eighth Amendment

17 claim for deliberate indifference to serious medical need upon which relief can be granted. 18 III. 19 Conclusion and Order Plaintiff's complaint fails to state a claim upon which relief may be granted under federal law.

20 Because amending the complaint will not cure the deficiency, the court will dismiss this action, with 21 prejudice, for failure to state a claim. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 22 Accordingly, based on the foregoing, it is HEREBY ORDERED that plaintiff's complaint is

23 dismissed, with prejudice, for failure to state a claim. 24 25 26 27 28
3

Plaintiff does not allege that any defendant directly provided him with medical care.

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED. Dated: 6i0kij

September 9, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

7