Samuels v. Ahlin et al

Filing 16

ORDER Dismissing Action, With Prejudice, for Failure to State a Claim Upon Which Relief May be Granted; ORDER for Clerk to Close Case, signed by Magistrate Judge Gary S. Austin on 5/3/13. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:10-cv-00585-GSA-PC

DOUGAL SAMUELS,

ORDER DISMISSING THIS ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED
(Doc. 15.)

vs.
PAM AHLIN, et al.,

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Defendants.

ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Dougal Samuels is a civil detainee proceeding pro se and in forma pauperis with this

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civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act

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(ADA). Plaintiff filed the Complaint commencing this action on April 5, 2010. (Doc. 1.) On

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April 14, 2010, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28

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U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 7.) Therefore, pursuant

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to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned

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shall conduct any and all proceedings in the case until such time as reassignment to a District

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Judge is required. Local Rule Appendix A(k)(3).

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On July 26, 2012, the Court dismissed the Complaint for failure to state a claim, with

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leave to amend.

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Complaint, which is now before the Court for screening. (Doc. 15.)

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II.

(Doc. 12.)

On November 2, 2012, Plaintiff filed the First Amended

SCREENING REQUIREMENT

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The court is required to screen complaints brought by detainees seeking relief against a

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

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The court must dismiss a complaint or portion thereof if the detainee has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). The in forma pauperis statutes provides that Athe court shall dismiss the

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case at any time if the court determines that . . . the action or appeal . . . fails to state a claim

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upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id.

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II.

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SUMMARY OF FIRST AMENDED COMPLAINT
The events at issue in the First Amended Complaint occurred at Coalinga State Hospital

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(CSH) in Coalinga, California, where Plaintiff is currently detained.

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defendants Pam Ahlin (ex-Executive Director), Stephen Mayberg (ex-Director, Dept. of Mental

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Plaintiff names as

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Health (DMH)), Fresno County Board of Supervisors, Arnold Schwarzenegger (ex-Governor of

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the State of California), and Doe Defendants 1-10. Plaintiff’s factual allegations follow.

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Plaintiff arrived at CSH on or about February 16, 2006.

In April 2006, Plaintiff

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developed severe coughing, loss of appetite, and cold sweats and chills at night, which lasted

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for weeks. When he complained to Dr. Bresler, his treating physician, he was told to sign up

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with the sick call nurse. Each day afterwards, Plaintiff’s physical condition worsened, even

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with medical treatment. In August 2006, Dr. Bresler prescribed medication for inflammation of

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Plaintiff’s chest for ten days, to combat bacterial infection. Plaintiff’s symptoms persisted, and

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Dr. Bresler diagnosed him with Coccidioidomycosis, the disease known as Valley Fever, and

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placed him in isolation for ten days. During isolation, it was discovered that Plaintiff had

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pneumonia. An x-ray was taken, which revealed a large black mass in his right lung, indicating

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that his condition was worse than expected. Plaintiff’s blood, urine, and sputum were tested,

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confirming that he was suffering from a dangerous form of Valley Fever.

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prescribed Flucomazone, an anti-fungal medication, which caused Plaintiff to experience an

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allergic reaction, with burning on his hands and arms, rashes on his legs, and blisters on his

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back and feet. When Plaintiff told the doctor he was unable to continue taking Flucomazone,

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Dr. Bresler indicated it was the only known medication available to treat his condition.

Dr. Bresler

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Plaintiff rapidly lost weight and continued to experience cold sweats and excruciating

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pain in his lower back around the sciatic nerves. The doctor prescribed pain pills, which did

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not control the pain. Unable to get a full examination and unable to convince medical staff of

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the intense pain he felt, in April 2007 Plaintiff went to the clinic and lay down on the floor.

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The nurses tried to stop him from complaining and crying, but they did not assist him. Dr.

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Jonathan Hamrick heard his loud cries, came out of his office, and asked why Plaintiff was

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crying. Plaintiff explained about the agonizing pain in his lower back. Dr. Hamrick escorted

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Plaintiff to have an x-ray taken. The x-ray did not reveal any internal damage, so Dr. Hamrick

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ordered an MRI.

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performed at Sierra Vista Hospital in San Luis Obispo. The MRI showed a darker black mass

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that had spread to his lumbar region, causing inflammation of the spinal cord. The infection

Nearly two months afterward, in June 2007, the MRI procedure was

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was eating into the bone and vertebrate from the inside out. Recognizing the dangerous nature

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of the infection, the doctor indicated that Plaintiff needed immediate surgery or he would risk

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the possibility of paralysis from the waist down. Two hours later, Plaintiff was admitted to the

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hospital for surgery.

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The surgery took seven hours or more, and the surgeon removed a disk and part of the

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lower spinal cord, cut sciatic nerves, repaired vertebrates, and inserted a steel plate. Plaintiff

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was in a body cast for weeks. The medications he took at Sierra Vista Hospital never caused

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him allergic reactions like the medications from CSH.

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Plaintiff alleges that as early as 2002, Defendants had specific scientific and health

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knowledge of the dangers of Valley Fever at Pleasant Valley State Prison (PVSP), which is

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only two hundred yards from CSH where Plaintiff contracted the disease. Defendants were

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negligent and deliberately indifferent because A[i]n complete disregard of the dangerous disease

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posed to employees and patients at Coalinga State Hospital (CSH), Plaintiff and many other

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individuals were brought to the state institution against their will; and that this resulted in

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Plaintiff contracting [Valley Fever]” First Amd Cmp, Doc. 15 at 5 ¶I.(2). Valley Fever is

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caused by exposure to dust in areas endemic to the disease, and is potentially fatal.

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Plaintiff alleges that Governor Schwartzenegger was aware of the dangers of Valley

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Fever at PVSP when ground was broken in the vicinity for the construction of CSH, and yet he

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allowed construction to proceed without interruption. Similarly, Plaintiff alleges that Stephen

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Mayberg, Director of the DMH, gave his written approval to go ahead with the construction,

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despite scientific knowledge of dangers at the site.

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Defendants failed to properly monitor the conditions which caused Plaintiff’s injuries.

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Defendants also failed to properly monitor the employees at CSH. Defendants acted on the

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assumption that the disease was not life threatening, and condoned the Department of Mental

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Health’s policies which amount to deliberate indifference to the health and safety of patients at

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the state institutions. As a person infected with Valley Fever, Plaintiff was denied the same

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accommodations as his peers at CSH, in violation of the ADA, the California Disabled Person’s

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Act, and the California Dependent Adult Act. The medical policies, practices, and lack of
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medical personnel at CSH are a result of discrimination against the mental health patients at

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CSH who are held pursuant to the Sexually Violent Predator Act.

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Plaintiff requests monetary damages and declaratory relief.
IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:

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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.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actors knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.

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A.

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To the extent that Plaintiff alleges liability under § 1983 based on Defendants' roles as

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supervisory officials, the Supreme Court has emphasized that the term “supervisory liability,”

Supervisory Liability

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loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S.

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at 677. “Government officials may not be held liable for the unconstitutional conduct of their

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subordinates under a theory of respondeat superior.” Id. at 676. Rather, each government

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official, regardless of his or her title, is only liable for his or her own misconduct. Id. at 677.

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Accordingly, Plaintiff fails to state a claim against any of the Defendants in their supervisory

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capacities.

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B.

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Plaintiff brings this action against Defendants in their official and individual capacities.

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Plaintiff may not bring suit for monetary damages against Defendants in their official

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capacities. AThe Eleventh Amendment bars suits for money damages in federal court against a

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state, its agencies, and state officials in their official capacities.@ Aholelei v. Dept. of Public

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Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh

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Amendment does not bar suits seeking damages against state officials in their personal

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capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir.

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2003).

Official Capacity

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APersonal-capacity suits . . . seek to impose individual liability upon a government

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officer for actions taken under color of state law.@ Id. at 25; Suever v. Connell, 579 F.3d 1047,

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1060 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the

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complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an

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official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm=n, 42 F.3d 1278, 1284

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(9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).

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Accordingly, Plaintiff fails state a claim for damages against any of the Defendants in
their official capacities.

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C.

No Personal Participation – defendants Ahlin, Fresno County Board of
Supervisors, and Does 1-10

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Under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002) (emphasis added). Plaintiff must demonstrate that each defendant, through his or her
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own individual actions, violated Plaintiff=s constitutional rights. Iqbal, 556 U.S. at 676-77. In

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the First Amended Complaint, Plaintiff did not allege any facts concerning personal acts by

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defendants Ahlin, members of the Fresno County Board of Supervisors, or Does 1-10. It is not

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sufficient to bring general allegations against “Defendants” without identifying the Defendants

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or describing personal acts that resulted in the violation of Plaintiff’s rights.

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Plaintiff fails to state any claims against defendants Ahlin, the Fresno County Board of

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Supervisors, or Does 1-10.

Therefore,

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D.

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Plaintiff alleges that Governor Schwartzenegger was aware of the dangers of Valley

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Fever at PVSP when ground was broken in the vicinity for the construction of CSH, and yet he

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allowed construction to proceed without interruption. Similarly, Plaintiff alleges that Stephen

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Mayberg, Director of the DMH, gave his written approval to go ahead with the construction,

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despite scientific knowledge of dangers at the site.

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Defendants “acted on the assumption that the disease was [not] life threatening.” First Amd

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Cmp, Doc. 12 ¶21. These allegations are not sufficient to state a claim. At most, Plaintiff

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states a claim for negligence, which is not cognizable under section 1983.

Defendants Schwartzenegger and Mayberg

However, Plaintiff also states that

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E.

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The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249

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(1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may

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be established by showing that Defendants intentionally discriminated against Plaintiff based

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on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of

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Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th

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Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly

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situated individuals were intentionally treated differently without a rational relationship to a

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legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128

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S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073

Discrimination - Equal Protection

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(2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC

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v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

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Plaintiff alleges that the medical policies, practices, and lack of medical personnel at

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CSH are a result of discrimination against the mental health patients at CSH who are held

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pursuant to the Sexually Violent Predator Act. However, Plaintiff has not alleged any facts

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demonstrating that he was intentionally discriminated against on the basis of his membership in

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a protected class, or that he was intentionally treated differently than other similarly situated

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inmates without a rational relationship to a legitimate state purpose. Therefore, Plaintiff fails to

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state a claim for relief for violation of his right to equal protection.
Medical Claim – Civil Detainee

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F.

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As a civil detainee, Plaintiff=s right to medical care is protected by the substantive

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component of the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct.

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2452 (1982). A determination whether Plaintiff=s rights were violated requires Abalancing of

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his liberty interests against the relevant state interests.@ Id. at 321. Plaintiff is Aentitled to more

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considerate treatment and conditions of confinement than criminals whose conditions of

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confinement are designed to punish,@ but the Constitution requires only that courts ensure that

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professional judgment was exercised. Id. at 321-22. A Adecision, if made by a professional, is

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presumptively valid; liability may be imposed only when the decision by the professional is

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such a substantial departure from accepted professional judgment, practice, or standards as to

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demonstrate that the person responsible actually did not base the decision on such a judgment.@

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Id. at 322-23.

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malpractice does not violate the Constitution. See Patten v. Nichols, 274 F.3d 829, 852-43 (4th

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Cir. 2001) (applying Youngberg “professional judgment” standard to a denial of medical care

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claim by a civilly committed psychiatric patient and holding that more than negligence is

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required).

Under this “professional judgment” standard, mere negligence or medical

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In the First Amended Complaint, Plaintiff states that Defendants were negligent and

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deliberately indifferent because A[i]n complete disregard of the dangerous disease posed to

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employees and patients at Coalinga State Hospital (CSH), Plaintiff and many other individuals
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were brought to the state institution against their will; and that this resulted in Plaintiff

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contracting [Valley Fever]” First Amd Cmp, Doc. 15 at 5 ¶I.(2). However, Plaintiff has

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alleged facts that indicate, at most, negligence.

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Plaintiff claims that Dr. Bresler failed to provide him with adequate medical care.

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However, Plaintiff’s account shows that Dr. Bresler provided him with varying medical

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treatments as his illness developed.

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Bresler told him to sign up with the sick call nurse. As the disease progressed, Dr. Bresler

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prescribed medication for Plaintiff, diagnosed him with pneumonia, isolated him, ordered x-

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rays, and took blood, urine, and sputum samples which revealed the diagnosis of Valley Fever.

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Plaintiff’s allegations do not reflect acts by Dr. Bresler, or any of the medical personnel, that

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caused them to be responsible for Plaintiff’s symptoms or complaints.

When Plaintiff presented with initial symptoms, Dr.

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Thus, the Court finds that Plaintiff has not stated any viable claims under section 1983.

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G.

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Plaintiff seeks to bring a claim under the ADA.

ADA Claims
Title II of the Americans with

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Disabilities Act (ADA) Aprohibit[s] discrimination on the basis of disability.@

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Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that Ano qualified individual

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with a disability shall, by reason of such disability, be excluded from participation in or be

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denied the benefits of the services, programs, or activities of a public entity, or be subject to

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discrimination by such entity.@ 42 U.S.C. ' 12132. Title II of the ADA applies to inmates

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within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct. 1952, 1955

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(1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland,

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98 F.3d 447, 453-56 (9th Cir. 1996). ATo establish a violation of Title II of the ADA, a plaintiff

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must show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from

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participation in or otherwise discriminated against with regard to a public entity=s services,

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programs, or activities; and (3) such exclusion or discrimination was by reason of [his]

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disability.@ Lovell, 303 F.3d at 1052.

Lovell v.

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Plaintiff alleges that due to the fact that he is infected with Valley Fever, he has been

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denied “equal conditions of living similar to his peers at CSH.” First Amd Cmp, Doc. 15 at 13
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¶23. These vague allegations are not sufficient to state a claim under the ADA. Plaintiff has

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not alleged that he is a qualified individual with a disability under the ADA, or that he was

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improperly excluded from participation in, and denied the benefits of, a prison service,

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program, or activity on the basis of his physical handicap. Therefore, Plaintiff fails to state a

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claim under the ADA.

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H.

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Plaintiff alleges that Defendants acted negligently, failed to properly monitor the

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employees at CSH, and acted in violation of the California Disabled Person’s Act and the

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California Dependent Adult Act.

Negligence and Other State Law

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State tort law, such as negligence, negligent failure to train and supervise, or violation

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of other state law, is not sufficient to state a claim for relief under ' 1983. To state a claim

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under ' 1983, there must be a deprivation of federal constitutional or statutory rights. See Paul

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v. Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental jurisdiction over

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state law claims, Plaintiff must first have a cognizable claim for relief under federal law. See

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28 U.S.C. ' 1367. In this instance, the Court fails to find any cognizable federal claims in the

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First Amended Complaint. Therefore, Plaintiff=s claims based on state laws fail.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 or the ADA against any of the Defendants. In this

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action, the Court previously granted Plaintiff an opportunity to amend the complaint, with

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ample guidance by the Court.

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against any of the Defendants which state a claim under ' 1983 or the ADA. The Court finds

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that the deficiencies outlined above are not capable of being cured by amendment, and

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therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v.

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Plaintiff has now filed two complaints without alleging facts

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Therefore, IT IS HEREBY ORDERED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED with prejudice for failure to state a claim upon which relief may be granted under

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' 1983 or the ADA; and

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2.

The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

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May 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

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