Burnett v. St. Clair et al

Filing 13

ORDER signed by Magistrate Judge Sheila K. Oberto on 5/12/2011 DISMISSING Complaint WITH LEAVE TO AMEND. Amended Complaint due by 6/16/2011. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ESTER BURNETT,

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Plaintiff,

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CASE NO. 1:10-cv-00822-SKO PC
ORDER DISMISSING DUE PROCESS AND
SECTION 845.6 CLAIMS WITH PREJUDICE,
AND DISMISSING COMPLAINT WITH
LEAVE TO AMEND EIGHTH AMENDMENT
MEDICAL CARE CLAIM

v.
JACK ST. CLAIR, et al.,

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Defendants.

(Doc. 1)

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THIRTY-DAY DEADLINE
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Screening Order
I.

Screening Requirement and Standard

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Plaintiff Ester Burnett, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 and California law on May 3, 2010. The Court is

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required to screen complaints brought by prisoners seeking relief against a governmental entity or

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an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss

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a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or

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malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding

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any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any

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time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief

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may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required

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to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true,

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legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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To state a claim, Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of

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meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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II.

Plaintiff’s Complaint

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A.

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Plaintiff, who is currently incarcerated at High Desert State Prison in Susanville, brings this

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action against Chief Medical Officer Jack St. Clair, Warden Clay, and John Doe for violating his

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rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment of

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the United States Constitution while he was at the Sierra Conservation Center in Jamestown.

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Plaintiff also alleges a claim for violation of California Government Code section 845.6.

Summary of Allegations

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On February 6, 2007, Plaintiff was seen by an outside physician for an evaluation of chronic

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lower back pain radiating to his lower right extremity. (Doc. 1, Comp., court record p. 16.) The

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physician, Dr. Bai, recommended an epidural steroid injection in light of the fact that Plaintiff had

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tried conservative treatment without significant improvement. (Id., p. 17.) Plaintiff was scheduled

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for a lumbar epidural injection on June 7, 2007, but he ended up attending a classification hearing

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instead. (Id., p. 25.) Plaintiff was then transferred to Centinela State Prison on June 28, 2007,

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without having received the recommended injection. (Id.)

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B.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise

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to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner

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of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with

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deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official

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does not act in a deliberately indifferent manner unless the official “knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970

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(1994).

Eighth Amendment Medical Care Claim

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Although Plaintiff blames Defendants St. Clair and Clay for the cancellation of his

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appointment on June 7, 2007, Plaintiff’s more specific allegations and his exhibits make it clear that

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Plaintiff does not know who cancelled the appointment. It is unclear if Defendant Clay had any

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personal involvement in the events at issue here, and neither Defendant St. Clair nor Defendant Clay

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may be held liable under section 1983 simply because they hold positions of authority within the

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prison. Iqbal, 129 S.Ct. at 1948-49; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

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Plaintiff’s exhibits indicate that on April 6, 2007, Defendant St. Clair signed a chrono placing

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a transfer hold on Plaintiff effective April 5, 2007, through August 4, 2007, because the Medical

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Advisory Review Committee approved the recommended steroid injection, and on May 29, 2007,

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Defendant St. Clair notified Plaintiff that he should stop several medications in preparation for the

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upcoming procedure. (Comp., p. 37.) In addition, Defendant St. Clair addressed Plaintiff’s inmate

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appeal on December 1, 2007, when Plaintiff was already at Centinela State Prison. (Id., pp. 34-36.)

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However, Defendant’s involvement in these events provides no basis for the imposition of liability

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under section 1983, as the events do not suggest that Defendant was deliberately indifferent to

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Plaintiff’s medical needs.

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Finally, Defendant Doe is apparently the staff member responsible for cancelling Plaintiff’s

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scheduled injection appointment so that he could attend his classification hearing – a hearing which
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Plaintiff alleges could easily have been scheduled for another time. The interference with scheduled

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medical treatment to the detriment of Plaintiff’s health may support an Eighth Amendment claim,

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but “[d]eliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this

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standard, the prison official must not only ‘be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”

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Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the

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risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff’s complaint sets forth no specific facts supporting a claim that Defendant Doe acted

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with deliberate indifference. The circumstances surrounding the cancellation of the appointment are

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either not known or not alleged. It is not clear that Defendant Doe committed any misconduct, let

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alone that he or she intentionally disregarded a substantial risk of harm to Plaintiff. Absent the

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presentation of facts sufficient to support a plausible claim of deliberate indifference, Plaintiff may

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not proceed against Defendant Doe based on the cancellation of the appointment.

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C.

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The touchstone of due process is protection of the individual against arbitrary government

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action, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of

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power without any reasonable justification in the service of a legitimate governmental objective.

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County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708 (1998) (quotation marks and

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citations omitted). However, the concept of substantive due process is expanded only reluctantly and

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therefore, if a constitutional claim is covered by a specific constitutional provision, the claim must

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be analyzed under the standard appropriate to that specific provision, not under the rubric of

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substantive due process. County of Sacramento, 523 U.S. at 843 (quotation marks and citation

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omitted). Because Plaintiff’s medical needs are subject to protection under the Eighth Amendment,

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he is precluded from pursuing a due process claim. This deficiency cannot be cured through

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amendment and the claim shall be dismissed, with prejudice.

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Due Process Claim

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D.

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Finally, Plaintiff alleges a claim for relief pursuant to section 845.6 of the California

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Government Code, which provides that prison personnel have a duty to summon medical care, and

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they may be held liable if they know or have reason to know that a prisoner is in need of immediate

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medical care, but they fail to take reasonable action to summon such care.1 Cal. Gov’t Code § 845.6

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(West 2011); Lucas v. County of Los Angeles, 47 Cal.App.4th 277, 288 (Cal. Ct. App. 1996);

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Watson v. State, 21 Cal.App.4th 836, 841 (Cal. Ct. App. 1993); Zeilman v. County of Kern, 168

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Cal.App.3d 1174, 1185-86 (Cal. Ct. App. 1985). To state a claim for violation of section 845.6, the

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plaintiff “must establish three elements: (1) the public employee knew or had reason to know of the

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need (2) for immediate medical care, and (3) failed to reasonably summons such care.” Jett v.

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Penner, 439 F.3d 1091, 1099 (9th Cir. 2006). “Liability . . . is limited to serious and obvious medical

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conditions requiring immediate care,” Watson, 21 Cal.App.4th at 841 (citations omitted), and the

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“section does not impose a duty to monitor the quality of care provided,” Jett, 439 F.3d at 1099.

Section 845.6 Claim

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The failure to schedule Plaintiff for a steroid injection for his chronic back condition does

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not support a section 845.6 claim. The statute applies to immediate medical needs and while

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Plaintiff’s condition caused him pain and merited medical treatment, it was a chronic condition

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rather than one requiring that medical attention be immediately summoned. The deficiencies in this

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claim are not capable of being cured through amendment and it shall be dismissed from the action,

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with prejudice.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state any claims upon which relief may be granted. Plaintiff’s

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due process and section 845.6 claims will be dismissed with prejudice, and Plaintiff will be provided

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with the opportunity to file an amended complaint curing the deficiencies in his Eighth Amendment

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Plaintiff did file and exhaust a claim with the California Victim Compensation and Government Claims
Board, which is a condition precedent to pursuit of his state law claim. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th
201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe
v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold v. California Pub.
Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627
(9th Cir. 1988).

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medical care claim. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new,

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unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 129

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S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

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a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the prior complaint, Forsyth v. Humana, Inc., 114

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F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be

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“complete in itself without reference to the prior or superceded pleading,” Local Rule 220.

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Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an

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amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,

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644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s due process claim and section 845.6 claim are dismissed from this action,
with prejudice, for failure to state a claim;

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2.

The Clerk’s Office shall send Plaintiff a complaint form;

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3.

Plaintiff’s complaint, filed May 3, 2010, is dismissed for failure to state a claim upon

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which relief may be granted under section 1983;

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4.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint curing the deficiencies in his Eighth Amendment medical care

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claim; and

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5.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 12, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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