Bowell v. CSP Substance Abuse Treatment Facility At Corcoran, et al.

Filing 10

ORDER DISMISSING COMPLAINT for Failure to State a Claim WITH LEAVE TO AMEND; Amended Complaint due by 7/11/2011 signed by Magistrate Judge Dennis L. Beck on 06/07/2011. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES BOWELL,

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Plaintiff,

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CASE NO. 1:10-CV-02336-AWI-DLB PC
ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM WITH
LEAVE TO AMEND

v.
CALIFORNIA SUBSTANCE ABUSE
TREATMENT FACILITY AT CORCORAN,
et al.,

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(DOC. 1)
RESPONSE DUE WITHIN THIRTY DAYS

Defendants.

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Screening Order
I.

Background

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Plaintiff James Bowell (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action by filing his complaint on December 15, 2010. Doc. 1.

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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 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

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legally “frivolous 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). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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

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

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary Of Complaint
Plaintiff was previously incarcerated at California Substance Treatment Facility

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(“SATF”) in Corcoran, California, and High Desert State Prison (“HDSP”) in Susanville,

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California. Plaintiff names as Defendants: M. Ancheta, L. Metzler, R. Kifer, and M. J. Gaedke,

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dentists employed at SATF; V. Fanous, chief dentist at SATF; C. Lewis, dentist at HDSP; C.

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Hopson, supervising dentist at HDSP; R. J. Leo, chief dental officer at HDSP; T. Kimura, chief

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third level dentist manager, at CDCR in Sacramento; and J. Walker, associate deputy director of

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dental health services, at CDCR in Sacramento.

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Plaintiff alleges the following. On May 25, 2008, defendant M. Ancheta wrongfully

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extracted a molar that could have been repaired in the community (presumably a reference to

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other dentists in the area).1 The extraction of the molar took over thirty minutes. During the

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extraction, Defendant Ancheta knocked Plaintiff’s front tooth loose by bumping it several times.

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The unnecessary molar extraction caused a number of problems, including Plaintiff being unable

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to eat on the left side of his mouth, the bite of his teeth being off, loss of weight from 170 to 140

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pounds, left side of Plaintiff’s neck becoming loose from lack of biting, damage to Plaintiff’s jaw

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bone, and bone loss and pain. Pl.’s Compl. ¶¶ 5-7.

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On January 18, 2008, Defendant Metzler stated that Plaintiff’s molars could be repaired

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Plaintiff makes a general allegation that the “dental deprivation” stems from August 8, 1991. Pl.’s
Compl. ¶ 2. There are no other allegations to support this. All of Plaintiff’s allegations are from 2008.

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out in the community by a local dentist. Pl.’s Compl. ¶ 8.

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On February 25, 2008, in response to Plaintiff’s 602 inmate grievance, Defendant Gaedke

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stated that CDCR does not provide root canal treatment for posterior teeth, including Plaintiff’s

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molar. Pl.’s Compl. ¶ 9.

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On April 22, 2008, Defendant R. Kifer attempted to pull two teeth, stating that tooth No.

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13 cannot be easily restored, and that SATF provides only a silver crown. Plaintiff found that to

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be unacceptable. Pl.’s Compl. ¶ 10.

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On June 17, 2008, Defendant V. Fanous during an interview stated that Plaintiff will not

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be provided off-site dental care based on the Department Operations Manual. Pl.’s Compl. ¶ 11.

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Plaintiff was then transferred to HDSP, and his inmate grievance also followed. Pl.’s Compl. ¶

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On December 17, 2008, Defendant C. Lewis stated that because Plaintiff refused to sign a

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liability release form for dental services, he would not repair Plaintiff’s teeth. Pl.’s Compl. ¶ 13.

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On February 20, 2009, Defendant C. Hopson affirmed Defendant C. Lewis’s decision, denying

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Plaintiff’s request for offsite dental services and cosmetic bonding. Pl.’s Compl. ¶ 14. On

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December 22, 2008, and March 9, 2009, Defendant R. J. Leo affirmed the denial of Plaintiff’s

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requests. Pl.’s Compl. ¶ 15.

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On October 30, 2009, Defendant T. Kimura at the Director’s level ruled against Plaintiff

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in the inmate appeal process, finding that Plaintiff was receiving treatment that was medically

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necessary. Pl.’s Compl. ¶ 16. On February 9, 2010, Defendant J. Walker ruled against Plaintiff,

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affirming the lower level responses to Plaintiff’s inmate appeals. Pl.’s Compl. ¶ 17.2

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Plaintiff alleges violations of the Eighth, Ninth, and Fourteenth Amendments, as well as

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dental malpractice. Plaintiff requests as relief declaratory judgment and monetary damages.

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Based on the inmate appeals submitted and incorporated by reference into Plaintiff’s complaint, it appears
that Plaintiff filed two separate inmate appeals related to the same issue.

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III.

Analysis

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A.

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The Ninth Amendment states, “[t]he enumeration in the Constitution of certain rights

Ninth Amendment

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shall not be construed to deny or disparage others retained by the people.” The Ninth

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Amendment has never been recognized as “independently securing any constitutional right, for

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purposes of pursuing a civil rights claim.” See Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir.

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1986). Plaintiff fails to state a claim under the Ninth Amendment.

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B.

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The Fourteenth Amendment prohibits deprivation of liberty without due process of law.

Fourteenth Amendment

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U.S. Const. amend. XIV, § 1. “[W]here a particular amendment provides an explicit textual

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source of constitutional protection against a particular sort of government behavior, that

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Amendment, not the more generalized notion of substantive due process, must be the guide for

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analyzing a plaintiff’s claims.” Patel v. Penman, 103 F.3d 850, 874 (9th Cir. 1996) (citations,

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internal quotations, and brackets omitted). Here, the Eighth Amendment, and not the more

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generalized notion of due process, is the explicit textual source of Plaintiff’s constitutional

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protection. Thus, Plaintiff’s Fourteenth Amendment claims will be denied.

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C.

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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does

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not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and

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citation omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an

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Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal

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

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

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Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate

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indifference standard involves an objective and a subjective prong. First, the alleged deprivation

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must be, in objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v.

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Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[]

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an excessive risk to inmate health or safety . . . .” Id. at 837.
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Eighth Amendment

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under

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

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could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the

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inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have

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been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no

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matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175,

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1188 (9th Cir. 2002)).

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Plaintiff fails to state a claim against Defendant Ancheta. Plaintiff alleges insufficient
facts to indicate that Defendant Ancheta knew of and disregarded an excessive risk to Plaintiff’s

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health. Plaintiff’s allegations amount at most to negligence, which fails to state an Eighth

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Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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Plaintiff fails to state a claim against Defendant Metzler. It is unclear what the serious

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harm is. Even if Plaintiff had sufficiently alleged a serious harm, Plaintiff’s allegations amount

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at most to a difference of opinion between the Plaintiff and the dentist concerning the appropriate

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course of treatment, which does not rise to the level of deliberate indifference to a serious

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medical need. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1996). Plaintiff also fails to state a claim against Defendants Gaeke and R. Kifer, for the same

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reason as Defendant Metzler.

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Plaintiff fails to state a claim against Defendant Lewis. Again, it is unclear what the

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serious harm is. Plaintiff’s allegations indicate that he refused treatment, which fails to

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demonstrate that Defendant Lewis disregarded an excessive risk to Plaintiff’s health. Farmer,

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511 U.S. at 837. Isolated incidents of neglect do not constitute deliberate indifference. Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff fails to state a claim against Defendants Vanous, Hopson, and Leo. Prisoners

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have no right to outside medical care to supplement the medical care provided by the prison.

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Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).

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Plaintiff fails to state a claim against Defendants Kimura and Walker. Based on the

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submitted exhibits incorporated into Plaintiff’s complaint, Plaintiff was provided medically
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necessary treatment. Again, Plaintiff’s allegations amount at most to a difference of opinion

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between the Plaintiff and the dentist concerning the appropriate course of treatment, which does

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not rise to the level of deliberate indifference to a serious medical need. Toguchi, 391 F.3d at

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1058. Plaintiff’s claims appear to arise solely from their actions in denying his appeal, which

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fails to state a claim, as prisoners has no due process right to a specific inmate grievance

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procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855

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F.2d 639, 640 (9th Cir. 1988)).

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D.

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Supervisory Liability

The Supreme Court recently emphasized that the term “supervisory liability,” loosely

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and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949.

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“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 1948. Rather, each government

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

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When the named defendant holds a supervisorial position, the causal link between the

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege

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some facts indicating that the defendant either: personally participated in the alleged deprivation

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of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated

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or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional

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rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989).

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Here, Plaintiff names Defendants Vanous, Hopson, Leo, Kimura, and Walker, all of

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whom have supervisory positions. Plaintiff fails to demonstrate that any of these Defendants

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personally participated in the deprivation of constitutional rights, knew of constitutional

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violations and failed to act to prevent them, or promulgated or implemented a policy that violated

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Plaintiff’s constitutional rights. Hansen, 885 F.2d at 646; Taylor, 880 F.2d at 1045.3

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E.

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Plaintiff alleges dental malpractice by Defendants. Because Plaintiff has failed to allege

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any cognizable federal claims, the Court declines to exercise supplemental jurisdiction over any

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state law claims. 28 U.S.C. § 1367(c)(3).

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IV.

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State Law Claims and Supplemental Jurisdiction

Conclusion And Order
Plaintiff’s complaint is dismissed for failure to state a claim against any Defendants. The

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Court will provide Plaintiff with an opportunity to file a first amended complaint curing the

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deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ.

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P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . .

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.” Twombly, 550 U.S. at 555.

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superseded

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pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567

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(citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth,

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114 F.3d at 1474.

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Plaintiff also seeks damages against the CDCR. The Eleventh Amendment bars suits against state
agencies, as well as those where the state itself is named as a defendant. Lucas v. Dep't Of Corr., 66 F.3d 245, 248
(9th Cir. 1995) (per curiam); Taylor, 880 F.2d at 1045. Plaintiff thus fails to state a claim against CDCR.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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

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2.

Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file a

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first amended complaint within thirty (30) days from the date of service of this

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order; and

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3.

If Plaintiff fails to comply with this order, the Court will recommend dismissal of
this action for failure to obey a court order and failure to state a claim.

IT IS SO ORDERED.
Dated:

June 7, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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