Schafer v. Pierre et al

Filing 8

ORDER DISMISSING COMPLAINT, With Leave to File Amended Complaint Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 10/27/11. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DANIEL SCHAFER,

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Plaintiff,

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CASE NO. 1:11-cv-00337 GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
R. GUTIERREZ, et al.,

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(ECF No. 1)

Defendants.
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Screening Order
I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c)(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 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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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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II.

Plaintiff’s Claims

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The events at issue in this action occurred at Pleasant Valley the California Substance Abuse

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Treatment Facility (“CSATF”) in Corcoran, where Plaintiff was previously housed. Plaintiff claims

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that he was subjected to inadequate medical care such that it violated the Eighth Amendment’s

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prohibition on cruel and unusual punishment. Plaintiff names the following individual defendants:

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R. Gutierrez, R.N; F. Soto, R.N.; Physician’s Assistant Pierre; Health Care Appeals Coordinator M.

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Crum; Health Care Appeals Coordinator Umi; Komar, R.N.; John and Jane Doe nurses.

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Plaintiff was housed at SATF from April 10, 2008, to September 22, 2009, when he was

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transferred to Pleasant Valley State Prison. Plaintiff alleges that in February of 2009, he began to

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submit requests to see a doctor. Plaintiff suffered from heartburn and “an upset stomach.”

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Plaintiff’s condition affected his eating, sleeping and bowel movements. Plaintiff received a ducat

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to see a nurse, and was told that he would see a doctor. Plaintiff was “ignored by medical officials”

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for 9 weeks while his condition worsened. By May 10, 2009, Plaintiff suffered from “extreme

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diarrhea” and weight loss. Plaintiff submitted a health care appeal to Appeals Coordinators Umi

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and Crum. They refused to process his appeals. (Compl. ¶ 4.)

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On July 8, 2009, another appeal request was submitted. On July 10, 2009, a ducat was

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issued, to which Plaintiff was never called . On July 15, 2009, Plaintiff received a ducat to see nurse

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Gutierrez. Although Plaintiff alleges that he was given “no treatment whatsoever,” he does allege
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that blood was drawn and a fecal sample was taken. Plaintiff was called back three weeks later and

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told that his specimen was insufficient and that he would have to provide another specimen. Plaintiff

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alleges that his condition worsened to the point that floor officers had to take Plaintiff to medical

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because he was defecating blood and could no longer eat. Plaintiff alleges that “medical” advised

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him that “we will check your white blood cell count and see you in two weeks.” (Compl. ¶ 5.)

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Plaintiff alleges that over the course of seven months, he lost a significant amount of weight,

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could not eat normally, defecated blood regularly, felt fatigued and weak, had mobility problems,

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heartburn, upset stomach and could not sleep. Plaintiff was ducated to medical on September 2,

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2009, only to be told that he will be re-ducated. Plaintiff was never seen by a physician while at

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SATF.

(Compl. ¶ 6.)
On September 22, 2009, Plaintiff was transferred to Pleasant Valley State Prison.

At

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Pleasant Valley, Plaintiff was tested for helicobacter pylori. Plaintiff tested positive for H. pylori,

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with a level four times higher than the normal range. Plaintiff alleges that because of the delay by

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Corcoran medical staff in diagnosing and treating him, he developed cholitis, a permanent

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condition.

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

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives

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another of a constitutional right, where that person ‘does an affirmative act, participates in another’s

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affirmative acts, or omits to perform an act which [that person] is legally required to do that causes

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the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007)

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(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he ‘requisite causal connection

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can be established not only by some kind of direct, personal participation in the deprivation, but also

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by setting in motion a series of acts by others which the actor knows or reasonably should know

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would cause others to inflict the constitutional injury.’” Id. (quoting Johnson at 743-44).

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A.

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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

Eighth Amendment Medical Care Claim

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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). Where a prisoner is alleging a delay

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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to

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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

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Here, Plaintiff has clearly alleged facts indicating the he suffered from a serious medical

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condition, and failed to timely receive treatment for that condition. Plaintiff has not, however,

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charged each individual defendant with specific conduct, indicating that each of them knew of and

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disregarded Plaintiff’s serious medical condition. Throughout the complaint, Plaintiff refers to

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medical staff in general, but fails to allege facts as to each defendant that support Plaintiff’s

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conclusory allegation that they were deliberately indifferent to Plaintiff’s condition. In order to hold

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an individual defendant liable, Plaintiff must name the individual defendant, describe where that

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defendant is employed and in what capacity, and explain how that defendant acted under color of

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state law. Plaintiff should state clearly, in his or her own words, what happened. Plaintiff must

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describe what each defendant, by name, did to violate the particular right described by Plaintiff.

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Plaintiff does allege that he filed a health care appeal, attempting to get medical care.

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Defendants Sumi and Crum, Health Care Appeals Coordinators, allegedly refused to process his

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appeals. Actions in reviewing an inmate grievance alone are not sufficient to demonstrate liability

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under § 1983. “Ruling against a prisoner on an administrative complaint does not cause or

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contribute to the violation.” Ellington v. Clark, 2010 WL 3001427, (E.D. Cal. July 29, 2010) citing

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George v. Smith, 507 F.3d 604, 609 (7th Cir. 2007). For a supervisory defendant to be liable, there
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must be either personal involvement or a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation. Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir.

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2001) (per curiam)(citing Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)(en

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banc)). The only conduct alleged as to Defendants Umi and Crum relates to their participation, or

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lack of participation, in the grievance process. Plaintiff therefore fails to state a claim against

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Defendants Crum and Umi.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not

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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,

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507 F.3d at 607 (no “buckshot” complaints).

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

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes 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 superceded

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pleading,” Local Rule 15-220. 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 (citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474.

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

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Plaintiff’s complaint is dismissed, with leave to amend, 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.

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

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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and

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5.

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If Plaintiff fails to file an amended complaint, the Court will dismiss action, with
prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:
6i0kij

October 27, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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