Woods v. Harrington et al

Filing 4

ORDER Dismissing Complaint, with Leave to File Amended Complaint within Thirty Days, signed by Magistrate Judge Gary S. Austin on 11/3/2010. Amended Complaint due by 12/9/2010. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

(PC) Woods v. Harrington, et al.

Doc. 4

1 2 3 4 5 6 7 STEVEN WOODS, 8 Plaintiff, 9 v. 10 KELLY HARRINGTON, et al., 11 Defendants. 12 13 Screening Order 14 I. 15 Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. 16 § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). 17 The Court is required to screen complaints brought by prisoners seeking relief against a 18 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 19 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 20 "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek 21 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 22 "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 23 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 24 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 25 Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," 26 none of which applies to § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (512) (2002). 27 Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing 28 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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CASE NO. 1:09-cv-02007 GSA PC ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)

Screening Requirement

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that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (209), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949. Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief,'" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and factual basis for his claim. II. Plaintiff's Claims Plaintiff, currently in the custody of the California Department of Corrections and Rehabilitation at Kern Valley State Prison (KVSP), names the following individual defendants: Kelly Harrington, Warden at KVSP; Dr. Sherry Lopez, Chief Medical Officer at KVSP; William McGuiness, Chief Medical Officer at Corcoran State Prison; Douglas Peterson, Chief Medical Officer at Folsom State Prison, M. McArthur, M.D., a physician at Folsom State Prison. In August of 2003, Plaintiff was diagnosed with Hepatitis C. The diagnosis was made after blood tests and a liver biopsy. Plaintiff was advised that his infection was stage 1 or stage 2. (Compl. ¶¶ 13, 14.) Plaintiff sought treatment at Folsom State Prison, where he was housed at the time. Plaintiff was eventually denied the treatment he sought. Plaintiff filed an inmate grievance, which upheld the denial on the ground that "stage 1 or 2 Hepatitis C, with clinically verifiable liver tissue damage, does not meet the criteria for inclusion in the Hepatitis C combination treatment program." (Compl. ¶ 19.) Plaintiff was advised that he was "then receiving medical care in 2

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accordance with Department standards." Id. On December 2, 2007, Plaintiff filed a second inmate grievance while house at CSP Corcoran. Plaintiff filed his grievance, "functionally alleging the same issues as above, but including hard data on viral load and liver enzymes." (Compl. ¶ 20.) The appeal was partially granted at the second level, directing that Plaintiff be given a biopsy. The second level response also advised Plaintiff that "only licensed healthcare providers may mandate treatment in accordance with outcome based data, and supported by diagnostic information." (Compl. ¶ 22.) On April 1, 2008, Plaintiff was transferred to Kern Valley State Prison, where he is now housed. Plaintiff alleges that the treatment he sought was denied, despite the fact that tests indicated he suffered from liver damage. Plaintiff alleges that a biopsy in March of 2004 indicated "clear, clinical indication of liver tissue damage," and an August, 2003 blood test indicated a viral load "well above anything considered normal." A. Venue

Plaintiff names as defendants two physicians employed at Folsom State Prison. Pursuant to Local Rule 120(d), all civil actions arising in Sacramento County, where Folsom State Prison is located, shall be filed in the Sacramento Division. As will be explained below, Plaintiff fails to charge any of the Folsom defendants with any specific conduct. These defendants should therefore be dismissed. Should Plaintiff desire to proceed against these defendants, he should file a separate action in the Sacramento divisions. B. Linkage

To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "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.'" Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (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 3

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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). Here, Plaintiff fails to charge any of the individual defendants with specific conduct that caused him injury. Plaintiff may not simply claim that he has been denied adequate medical care, and then list individual defendants. In order to hold an individual defendant liable, Plaintiff must name the individual defendant, describe where that defendant is employed and in what capacity, and explain how that defendant acted under color of state law. Plaintiff should state clearly, in his or her own words, what happened. Plaintiff must describe what each defendant, by name, did to violate the particular right described by Plaintiff. C. Eighth Amendment Medical Care Claim

To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "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.'" Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (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). "[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 4

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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). Plaintiff's allegations, at most, indicate a disagreement with the assessment that he does not qualify for inclusion in the Hepatitis C combination treatment program. Neither "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a s 1983 claim," Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted), nor a difference of opinion between medical personnel regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). That Plaintiff suffers from liver damage does not subject defendants to liability for their decision not to include Plaintiff in the Hepatitis C combination treatment program. There are no facts alleged indicating that Plaintiff was denied treatment. Rather, Plaintiff appears to allege that he disagrees with the treatment he received. Such an allegation fails to state a claim for relief. D. Supervisory Liability

Plaintiff names as a defendant the Warden at KVSP, Kelly Harrington. Under section 1983, Plaintiff must prove that the Defendants holding supervisory positions personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability, and each defendant is only liable for his or her own misconduct. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). A supervisor may be held liable for the constitutional violations of his or her subordinates only if he or she "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Here, Plaintiff alleges no facts indicating that Warden Harrington "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Defendant Harrington should therefore be dismissed. III. Conclusion and Order The Court has screened Plaintiff's complaint and finds that it does not state any claims upon 5

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which relief may be granted under section 1983. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George, 507 F.3d at 607 (no "buckshot" complaints). Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Hydrick, 500 F.3d at 987-88. 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, 127 S.Ct. 1955, 1965 (2007) (citations omitted). Finally, Plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. 2. 3. Plaintiff's complaint is dismissed, with leave to amend, for failure to state a claim; The Clerk's Office shall send to Plaintiff a complaint form; Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; 4. Plaintiff may not add any new, unrelated claims to this action via his amended complaint and any attempt to do so will result in an order striking the amended complaint; and 5. If Plaintiff fails to file an amended complaint, the Court will recommend that this action be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED. Dated: 6i0kij

November 3, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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