Reese v. CDCR Medical Department et al

Filing 12

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Dennis L. Beck on 03/18/2011. Amended Complaint due by 4/25/2011 (Attachments: # 1 AMENDED COMPLAINT FORM)(Martin, S)

(PC)Reese v. CDCR Medical Department et al

Doc. 12

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 BRUCE REESE, 9 10 v. Plaintiff, CASE NO. 1:10-CV-01352-DLB PC ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 1) RESPONSE DUE WITHIN 30 DAYS /

UNITED STATES DISTRICT COURT

11 CDCR MEDICAL DEPARTMENT, et al., 12 13 14 15 16 I. 17 Background Defendants.

Screening Order

Plaintiff Bruce Reese ("Plaintiff") is proceeding pro se and in forma pauperis in this civil

18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff was formerly in the custody of the 19 California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff initiated this 20 action by filing his complaint on July 28, 2010. 21 The Court is required to screen complaints brought by prisoners seeking relief against a

22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 24 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 25 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 26 § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 27 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 28 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1
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1 1915(e)(2)(B)(ii). 2 A complaint must contain "a short and plain statement of the claim showing that the

3 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual 7 matter, accepted as true, to `state a claim that is plausible on its face.'" Id. (quoting Twombly, 8 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 9 II. 10 Summary of Complaint Plaintiff was formerly incarcerated at the California Substance Abuse Treatment Facility

11 ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff 12 names as Defendants the CDCR Medical Department. Plaintiff specifically names Chief Medical 13 Officer Enenmoh and physician's assistant Peters.1 14 Plaintiff alleges the following. Plaintiff was examined by Defendant Peters in January

15 2010. Defendant Peters was going to schedule Plaintiff for removal of a lipoma on the back 16 Plaintiff's neck and spine. During the exam, Plaintiff was informed by Defendant Peters that 17 because he was taking a blood thinner, Plaintiff was at high risk and the doctor refused to 18 perform the procedure. Defendant also stated that sending Plaintiff to an outside hospital would 19 be too expensive. Plaintiff has been in pain ever since he arrived at CDCR on June 12, 2009, and 20 has been seeking medical treatment since. Plaintiff appealed this issue to the Director's level, 21 and was denied. 22 Plaintiff seeks as relief an injunction for the treatment of his lipoma, and monetary

23 damages. 24 /// 25 /// 26 27 28
It is unclear whether Defendant Peters is a physician or not, as Plaintiff is unclear as to whether Defendant Peters examined him. The Court will assume that Plaintiff refers to Defendant Peters when referring to the examining physician.
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2

1 III. 2

Analysis The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does

3 not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and 4 citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an 5 Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the `minimal 6 civilized measure of life's necessities,'" and (2) "the prison official `acted with deliberate 7 indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 8 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate 9 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 10 must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. 11 Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] 12 an excessive risk to inmate health or safety . . . ." Id. at 837. 13 "Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under

14 this standard, the prison official must not only `be aware of the facts from which the inference 15 could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the 16 inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have 17 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 18 matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 19 1188 (9th Cir. 2002)). 20 Plaintiff fails to state a claim. Plaintiff alleges that Defendant Peters refused to remove

21 Plaintiff's lipoma because Plaintiff was taking blood thinners. Plaintiff fails to allege sufficient 22 facts that indicate Defendant Peters knew of and disregarded an excessive risk to Plaintiff's 23 health. It appears that Defendant Peters considered the risks in performing a surgery on Plaintiff 24 while Plaintiff was taking blood thinners, and decided that the risk of such a procedure 25 outweighed the benefits. Plaintiff is thus alleging only a difference of opinion with the 26 Defendant as to the appropriate course of treatment, which does not rise to the level of deliberate 27 indifference. Toguchi, 391 F.3d at 1058. 28 3

1

Plaintiff also fails to state a claim against Defendant Enenmoh. Section 1983 requires a

2 Plaintiff to show that (1) each defendant acted under color of state law and (2) each defendant 3 deprived him of rights secured by the Constitution or federal law. Long v. County of Los 4 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate that each defendant 5 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th 6 Cir. 2002). Plaintiff fails to allege how Defendant Enenmoh is liable. 7 If Plaintiff is alleging liability solely because of Defendant Enenmoh's supervisory title,

8 Plaintiff also fails to state a claim. The United States Supreme Court emphasized that the term 9 "supervisory liability," loosely and commonly used by both courts and litigants alike, is a 10 misnomer. Iqbal, 129 S. Ct. at 1949. "Government officials may not be held liable for the 11 unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 12 1948. Rather, each government official, regardless of his or her title, is only liable for his or her 13 own misconduct. When the named defendant holds a supervisory position, the causal link 14 between the defendant and the claimed constitutional violation must be specifically alleged. See 15 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 16 Cir. 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 17 some facts indicating that the defendant either: personally participated in the alleged deprivation 18 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 19 or "implemented a policy so deficient that the policy `itself is a repudiation of constitutional 20 rights' and is `the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 21 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 22 1989). Plaintiff alleges no facts that support a claim for supervisory liability against Defendant 23 Enenmoh. 24 IV. 25 Conclusion And Order Plaintiff fails to state any cognizable claims against any Defendants. The Court will

26 provide Plaintiff with an opportunity to file a first amended complaint curing the deficiencies 27 identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 28 Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended 4

1 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 2 If Plaintiff decides to amend, Plaintiff's amended complaint should be brief, Fed. R. Civ.

3 P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's 4 constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the 5 "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . 6 ." Twombly, 550 U.S. at 555. 7 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

8 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 9 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded 10 pleading," L. R. 220. Plaintiff is warned that "[a]ll causes of action alleged in an original 11 complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 12 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 13 114 F.3d at 1474. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3. Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. 2. The Clerk's Office shall send Plaintiff a complaint form; Plaintiff's complaint is dismissed for failure to state a claim, with leave to file a first amended complaint within thirty (30) days from the date of service of this order; and If Plaintiff fails to comply with this order, the Court will dismiss this action for failure to obey a court order and failure to state a claim. IT IS SO ORDERED. Dated: 3b142a

March 18, 2011

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE