Bell v. Lopez et al

Filing 22

SCREENING ORDER DISMISSING 21 Action, with Prejudice, for Failure to State a Claim under Section 1983; ORDER COUNTING DISMISSAL AS A STRIKE signed by Magistrate Judge Sheila K. Oberto on 8/26/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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HORACE BELL,

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Plaintiff,

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CASE NO. 1:10-cv-01762-SKO PC
SCREENING ORDER DISMISSING ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UNDER SECTION 1983

v.
SHERRY LOPEZ, et al.,

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(Doc. 21)

Defendants.

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ORDER COUNTING DISMISSAL AS A
STRIKE PURSUANT TO 28 U.S.C. § 1915(G)
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Screening Order
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I.

Screening Requirement and Standard

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Plaintiff Horace Bell, a state prisoner proceeding pro se and in forma pauperis, filed this civil
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rights action pursuant to 42 U.S.C. § 1983 on September 24, 2010. On August 15, 2011, the Court
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dismissed Plaintiff’s second amended complaint, with leave to amend, for failure to state a claim.
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Plaintiff filed a third amended complaint on August 24, 2011.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief 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 Atlantic

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

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indulge 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). While factual allegations are accepted as true, legal

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

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss,

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572 F.3d at 969.

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II.

Plaintiff’s Third Amended Complaint

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A.

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Plaintiff brings this action against Chief Medical Officer Sherry Lopez and Doctor Larry

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Dileo for events which occurred while he was incarcerated at Kern Valley State Prison.1 Plaintiff

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alleges that Defendant Dileo, under the authorization of Defendant Lopez, took his prescription

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medications away. Plaintiff alleges that he suffers daily from chronic, excruciating pain, making

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sleep and even using the toilet difficult; and that he is enduring cruel and unusual punishment and

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Defendants are practicing racism against him.

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Allegations

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Plaintiff is now incarcerated at the California Substance Abuse Treatment Facility and State Prison in

Corcoran.

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B.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part

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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or

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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was

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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th

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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a

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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused

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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

Defendant Dileo

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At the screening stage, Plaintiff’s allegation that he suffers from severe chronic pain is

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sufficient to support the existence of a serious medical need. However, Plaintiff has not supported

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his claim that Defendant Dileo acted with deliberate indifference to that need. Plaintiff’s exhibits

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reveal that Defendant Dileo changed Plaintiff’s brand-name prescription medications to generic

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medications, but a mere disagreement with Defendant Dileo’s chosen course of treatment, including

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changes to medications, does not support a claim under section 1983. Franklin v. Oregon, 662 F.2d

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1337, 1344 (9th Cir. 1981). (3rd Amend. Comp., pp. 5-14.)

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As previously stated, the mere possibility of misconduct is not enough to support a claim.

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Iqbal, 129 S.Ct. at 1949. Facts which are merely consistent with liability fall short of meeting the

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requisite plausibility standard, and while Plaintiff takes issue with Defendant Dileo’s medical

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decisions, that is simply not enough to support a plausible claim for relief under the Eighth

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Amendment. Id.

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Further, while Plaintiff alleges racism, his third amended complaint lacks any support for a

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claim that Defendant Dileo intentionally and impermissibly discriminated against Plaintiff. E.g.,

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Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008);

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Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Comm. Concerning
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Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis,

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345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

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C.

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Under section 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 129 S.Ct. 1937 at 1948-49; Simmons v. Navajo

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County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218,

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1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Supervisors may only be held liable if they

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“participated in or directed the violations, or knew of the violations and failed to act to prevent

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them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, No. 09-55233,

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2011 WL 2988827, at *4-5 (9th Cir. Jul. 25, 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.

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2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir.

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2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Liability may not be imposed on

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supervisory personnel under the theory of respondeat superior. Iqbal, 129 S.Ct. at 1948-49; Ewing,

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588 F.3d at 1235.

Defendant Lopez

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Plaintiff’s third amended complaint fails to set forth any facts demonstrating that Defendant

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Lopez was personally involved in his medical care or in discriminating against him, or that she was

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otherwise responsible for a violation of his rights under a theory of supervisory liability. Starr, 2011

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WL 2988827, at *4-5.

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III.

Conclusion and Order

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Plaintiff’s third amended complaint fails to state a claim upon which relief may be granted

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under section 1983. Plaintiff was previously notified of the deficiencies in his claims and granted

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leave to amend, but he was unable to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130

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(9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this

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case, further leave to amend is not warranted.

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Accordingly, this action is HEREBY ORDERED DISMISSED, with prejudice, for failure

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to state a claim under section 1983, and this dismissal SHALL count as a strike pursuant to 28

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U.S.C. § 1915(g).

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IT IS SO ORDERED.

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Dated:
ie14hj

August 26, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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