Kimbro v. Chen et al

Filing 11

ORDER DISMISSING 1 Complaint, WITH LEAVE TO AMEND, for Failure to State a Claim upon which Relief may be Granted; Thirty Day Deadline signed by Magistrate Judge Gerald B. Cohn on 7/12/2012. First Amended Complaint due by 8/15/2012. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICHARD KIMBRO,

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CASE NO. 1:11-cv-00957-GBC (PC)

Plaintiff,

ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED

v.
CHEN, et al.,

Doc. 1
Defendants.
/ THIRTY-DAY DEADLINE

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Screening Order

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I. Procedural History, Screening Requirement, and Standard

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On June 13, 2011, Plaintiff Richard Kimbro (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to

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provide morphine, methadone, and treat his kidney stone condition from 2005 through 2011. Compl.

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at 7 of Part 1 & 53, 70-71, 79 of Part 2 of Complaint, Doc. 1. Plaintiff names forty-seven (47)

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Defendants, who were employed by the Appeals Branch of California Department of Corrections

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(“CDCR”); Kern Valley State Prison (“KVSP”); Salinas Valley State Prison (“SVSP”); Mule Creek

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State Prison (“MCSP”); High Desert State Prison (“HDSP”); and Corcoran Substance Abuse and

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Treatment Facility (“CSATF”). See id. at 1-3.

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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
Page 1 of 14

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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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell

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

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While

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factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). 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 meeting

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

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971

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(9th Cir. 2011); Jones, 297 F.3d at 934. For each defendant named, plaintiff must show a causal link

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between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at

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1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554,

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570 (9th Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may

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only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50;

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
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II. Allegations in Plaintiff’s Complaint

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In Plaintiff’s complaint, he names Dr. Chen; N. Grannis, Chief Inmate Appeals Branch; T.

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Brewer, Chief Executive Appeals Officer; D. D. Ortiz, Associate Warden, Health Care Operations;

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L. Zamora, Chief Appeals; M.D. Biter, Warden; Dr. John Doe; and Dr. N. Patel. Compl. at 1, 3, 23

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of Part 1 & 79 of Part 2 of Complaint, Doc. 1. Dr. Chen, D. D. Ortiz, and M.D. Biter were employed

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at KVSP and Dr. John Doe was employed at CSATF. Id. The remainder of the forty-seven (47)

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defendants were employed or related to claims arising at other prisons, namely SVSP, MCSP, and

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HDSP. Id. at 1-3.

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On September 20, 2009, Plaintiff was transferred to CSATF and continued on pain

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management therapy. Id. at 17. On December 21, 2009, during a ten minute exam, Dr. John Doe

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would not take a urine sample or treat infection, causing Plaintiff to go to the hospital. Id. at 23, 28.

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Dr. John Doe stated that Plaintiff claims he is not adequately controlled on Tylenol and wants

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morphine. Id. at 53, Part 2 of Complaint. Dr. John Doe declined to order morphine. Id. On December

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25, 2009, Plaintiff had an infection in his urinary tract. Id. at 17, Part 1 of Complaint. Following the

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infection, Plaintiff was placed on a treatment plan at CSATF to include pain management and urine

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checks. Id.

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On July 20, 2010, Plaintiff was transferred from CSATF to KVSP. Id. at 5, 17. Plaintiff’s

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medications were discontinued without being seen. Id. at 5. Weeks later, Dr. Chen denied all pain

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management medications, refused recommendations from specialist regarding surgical issues,

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refused to renew mobility, denied batteries for his hearing aid, and denied renewal of his ADA

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hearing impaired. Id. He was refused urine testing for several months even though he has a

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documented history of kidney stones. Id. at 6. Dr. Chen refused to consider prior specialist

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recommendations. Id. Dr. Chen told him to drink large amounts of water, but the water has

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documented high levels of arsenic. Id. Dr. Chen told him that if he did not drink the water, he would

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experience kidney pain. Id. Plaintiff has developed a cyst on his liver and a severe skin rash covering

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his body, which are symptoms of arsenic poisoning. Id. As a result of the pain and skin rash, Plaintiff

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was on suicide watch in January and March 2011. Id. As a result of the pain and anger issues

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between Dr. Chen and Plaintiff, he was transferred to a different yard and placed under the care of
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Dr. J. Sanchez. Id. Dr. Sanchez renewed Plaintiff’s ADA status and ordered a new knee brace that

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Dr. Chen had refused to provide him for over three months. Id. Plaintiff’s 602 inmate appeal time

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restraints were violated, Plaintiff had to involve the warden and internal affairs. Id. at 7. Plaintiff’s

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specialist recommendations were refused because Dr. Sanchez said Dr. Chen was his superior and

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he would not disagree with his opinion. Id.

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On November 29, 2010, D. D. Ortiz, Associate Warden, Health Care Operations, issued a

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memorandum stating Plaintiff’s appeal at KVSP was still pending. Id. at 79, Part 2 of Complaint.

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On January 27, 2011, T. Brewer, Chief Executive Officer for KVSP, issued a second level response

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to Plaintiff’s appeal. Id. at 70-71. Plaintiff was interviewed about his appeal by Dr. Patel, and on

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September 8, 2010 and September 22, 2010, Plaintiff was seen by the urologist who did not feel that

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methadone was required. Id. at 70. The doctor noted there were no active symptoms of kidney

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stones. Id. On November 4, 2010, Plaintiff was seen and the doctor noted no manifestation of kidney

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stone attacks. Id. at 71. Plaintiff requested methadone on numerous times. Id. On December 1, 2010,

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Plaintiff had a CT Scan of the abdomen and pelvis. Id. On March 24, 2011, L. Zamora, Chief, Office

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of Third Level Appeals, screened out Plaintiff’s appeal for time constraints. Id. at 72.

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As of May 30, 2011, Plaintiff still has no treatment for his chronic issues or his skin rash. Id.

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at 7, Part 1 of Complaint. Plaintiff cannot sit or stand for more than fifteen minutes and he has not

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received the knee brace. Id. He has kidney stone issues and blood off an on in his urine. Id. He is

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being accused of drug seeking behavior when he requests to be returned to a specialist for pain

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management. Id. at 23.

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Plaintiff also attaches exhibits and chronologizes allegations from 2005 through 2009 at other

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prisons, namely SVSP, MCSP, and HDSP. Id. at 7-28, 30-100 of Part 1 & 1-52 of Part 2 of

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Complaint.

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For relief, Plaintiff seeks proper medical attention; damages of $1,500,000 and $25,000 from

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each defendant; and to be found innocent or guilty for assault on staff. Id. at 5.

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//

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III. Legal Standard and Analysis for Plaintiff’s Claims

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A. Rule 20(a) and Venue

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Having examined Plaintiff’s claims, the Court finds that Plaintiff’s complaint is in violation

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of Rule 20(a)(2) of the Federal Rules of Civil Procedure. Pursuant to Federal Rule of Civil Procedure

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20(a)(2), persons may be joined as defendants in one action if the right asserted against them arises

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from the same transaction or occurrence, and any questions of law or fact common to all defendants

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will arise in the action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (finding unrelated

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claims against different defendants belong in different suits).

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Here, Plaintiff’s claims against defendants and allegations from other prisons, namely SVSP,

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MCSP, and HDSP, arise from different unrelated occurrences, as the alleged violations all occurred

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at prisons not within the Fresno division of the Eastern District of California. SVSP is in the

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Northern District of California, and MCSP and HDSP are in the Sacramento division of the Eastern

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District of California, and venue is appropriate there. Accordingly, the Court will dismiss Plaintiff’s

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claims against defendants arising from other prisons, namely SVSP, MCSP, and HDSP, without

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prejudice to filing a new, separate action.

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B. Eighth Amendment Deliberate Indifference to Serious Medical Need

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1. Legal Standard

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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, 439 F.3d at 1096 (quoting Estelle

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v. Gamble, 429 U.S. 97, 106 (1976)). The two part test for deliberate indifference requires the

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plaintiff to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s

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condition could result in further significant injury or the unnecessary and wanton infliction of pain,’”

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and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096

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(quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,

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WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)).

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Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner’s

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pain or possible medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d

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at 1060). Deliberate indifference may be manifested “when prison officials deny, delay or
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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” Id. (citing McGuckin 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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Under § 1983, Plaintiff must link the named defendants to the participation in the violation

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at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th

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Cir. 2010); Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934. 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, and administrators may only be held liable if they “participated in or directed the

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violations, or knew of the violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989); accord Starr, 652 F.3d at 1205-08; Corales, 567 F.3d at 570; Preschooler II

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v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick,

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126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff may not seek to impose liability on defendants merely upon position of authority,

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based on vague or other conclusory allegations. Plaintiff fails to allege sufficient facts to support a

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plausible claim based on the knowing disregard of a substantial risk of harm to Plaintiff’s health.

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Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner, and Estelle, 429 U.S. at 106; McGuckin, 974 F.2d at 1059, and isolated occurrences of

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neglect do not rise to the level of an Eighth Amendment violation, O’Loughlin v. Doe, 920 F.2d 614,

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617 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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2. Analysis

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Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff alleges Defendants

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were indifferent by failing to provide him with treatment for kidney stones. Id. at 6, Part 1 of

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Complaint, Doc. 1. However, Plaintiff’s complaint demonstrates that Defendants were not indifferent

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to Plaintiff’s complaints but evaluated Plaintiff and treated him according to medical necessity. On

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September 8, 2010 and September 22, 2010, Plaintiff was seen by the urologist who did not feel that

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methadone was required. Id. at 70, Part 2 of Complaint. The doctor noted there were no active
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symptoms of kidney stones. Id. On November 4, 2010, Plaintiff was seen and the doctor noted no

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manifestation of kidney stone attacks. Id. at 71. Plaintiff requested methadone on numerous times.

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Id. On December 1, 2010, Plaintiff had a CT Scan of the abdomen and pelvis. Id. Plaintiff contends

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that he needs stronger pain medication such as morphine or methadone rather than Tylenol, but

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Plaintiff’s medical records establish that Plaintiff does not currently have active kidney stones or any

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other serious condition warranting narcotic drugs. Id. at 70, Part 2 of Complaint. Plaintiff states Dr.

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Chen is ignoring the recommendations of the specialist. Id. at 5, Part 1 of Complaint. However,

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Plaintiff does not state when he saw a specialist, who the specialist was, and if the recommendations

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by the specialist concern his current medical condition. Id. Plaintiff also contends that Dr. Chen told

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him to drink water, but Plaintiff disagrees with Dr. Chen and does not want to drink water because

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of the high levels of arsenic. Id. at 6.

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Plaintiff states he has not received his knee brace, but Plaintiff does not allege knee pain. Id.

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at 7, Part 1 of Complaint. Moreover, Plaintiff states that Defendants did order him a knee brace. Id.

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Plaintiff contends that Dr. Chen failed to provide him his ADA hearing impairment, but Plaintiff

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alleges he was transferred and Dr. Sanchez renewed his ADA status. Id. Finally, Plaintiff contends

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that during a ten minute exam, Dr. John Doe would not take a urine sample or treat infection, causing

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Plaintiff to go to the hospital. Id. at 23, 28. However, the medical notes indicate that Dr. John Doe

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stated that Plaintiff claimed that his pain was not adequately controlled by Tylenol; that he wanted

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morphine; and that Dr. John Doe declined to order morphine. Id. at 53, Part 2 of Complaint. Plaintiff

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fails to state a claim of deliberate indifference against Dr. John Doe.

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Neither an inadvertent failure to provide adequate medical care, nor mere negligence or

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medical malpractice, nor a mere delay in medical care, nor a difference of opinion over proper

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treatment, constitutes an Eighth Amendment violation. See Estelle, 429 U.S. at 105-06; Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’r, 766 F.2d 404,

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407 (9th Cir. 1984). Moreover, the Constitution does not require that prison doctors give inmates

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every medical treatment they desire. Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977). To

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establish a constitutional right to treatment under the Eighth Amendment, an inmate must show that

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a physician or other health care provider exercising ordinary skill and care at the time of observation
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would conclude with reasonable medical certainty that: (1) the prisoner’s symptoms evidenced a

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serious disease or injury; (2) the disease or injury was curable or could be substantially alleviated;

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and (3) the potential for harm to the prisoner by reason of delay or denial of care would be

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substantial. Id. “The courts will not intervene upon allegations of mere negligence, mistake or

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difference of opinion.” Id. at 48; see also Sanchez, 891 F.2d at 242. In addition, gross negligence is

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insufficient to establish deliberate indifference. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir. 1990).

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Neither negligence nor gross negligence is actionable under § 1983 in the prison context. See

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Farmer, 511 U.S. at 835-36 & n.4; Wood, 900 F.2d at 1334 (gross negligence insufficient to state

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claim for denial of medical needs to prisoner). Nor is negligence actionable under § 1983 outside of

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the prison context. The Constitution does not guarantee due care on the part of state officials;

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liability for negligently inflicted harm is categorically beneath the threshold of constitutional due

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process. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). The Eighth Amendment’s

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prohibition of cruel and unusual punishment applies to prison medical care (and the Fourteenth

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Amendment’s right to due process applies to jail medical care); however, an Eighth Amendment or

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Fourteenth Amendment violation only occurs if there is deliberate indifference to a known risk to

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an inmate’s serious medical condition.

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Plaintiff alleges that defendants failed to provide him with morphine or methadone. However,

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Plaintiff is not permitted to dictate his medical treatment. Bowring, 551 F.2d at 47-48. As a matter

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of law, differences of opinion between prisoner and prison doctors fails to show deliberate

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indifference to serious medical needs. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

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(emphasis added).

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Thus, even with liberal construction, Plaintiff’s complaint does not allege deliberate

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indifference to a medical need because neither mere negligence or medical malpractice, nor a mere

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delay in medical care, nor a difference of opinion over proper treatment, constitutes an Eighth

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Amendment violation. See Estelle, 429 U.S. at 105-06 (emphasis added); Sanchez, 891 F.2d at 242;

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Shapley, 766 F.2d at 407. Moreover, the Constitution does not require that prison doctors give

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inmates every medical treatment they desire. Bowring, 551 F.2d at 47-48. The complaint will be
Page 8 of 14

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dismissed for failure to state a claim upon which relief may be granted.

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C. Eighth Amendment Conditions of Confinement
Plaintiff alleges there is high levels of arsenic in the water at KVSP. Compl. at 6, Part 1 of
Complaint, Doc. 1.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan, 465 F.3d at 1045. But this is not a mandate for

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comfortable prisons. Farmer, 511 U.S. at 832. Indeed, prison conditions may be both restrictive and

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harsh without violating the Constitution. Chapman, 452 U.S. at 347. Within this construct, however,

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prison officials must provide food, clothing, shelter, sanitation, medical care, and personal safety.

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Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth

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Amendment when these two components are met: (1) the deprivation alleged must be objectively

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sufficiently serious; and (2) the prison official possesses a sufficiently culpable state of mind.

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Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 297-98 (1991)). In determining

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whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component

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of an Eighth Amendment claim, courts consider the circumstances, nature, and duration of the

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deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis,

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217 F.3d 726, 731 (9th Cir. 2000). Substantial deprivations of shelter, food, drinking water or

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sanitation over an extended time are sufficiently serious to satisfy the objective component of an

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Eighth Amendment claim. Id. at 732-33.

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The exposure to toxic substances can support a claim under § 1983. See Wallis v. Baldwin,

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70 F.3d 1074, 1076–77 (9th Cir. 1995) (exposure to asbestos). However, Plaintiff’s speculative and

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conclusory allegations fail to state a claim that the elevated levels of arsenic in the water is

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sufficiently serious as to constitute a risk of harm to Plaintiff’s health. Plaintiff has alleged that he

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has various adverse health conditions attributable to the exposure, but provided no facts that would

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enable the Court to conclude that this is anything more than unqualified speculation by an individual

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and not based on medical or other training or science. The complaint lacks specific factual

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allegations connecting each individual defendant to the conduct described. The allegations do not

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make clear what role each defendant played in the process and how each caused or failed to correct
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the alleged harm and how they had the capacity to correct it.
Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under
§ 1983 based upon Eighth Amendment conditions of confinement.

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D. Violation of State Prison Rules and Regulations

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Violations of state prison rules and regulations, without more, do not support any claims

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under section 1983. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada County,

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Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only if the events complained of rise to the level of a

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federal statutory or constitutional violation may Plaintiff pursue them under section 1983. Patel, 648

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F.3d at 971; Jones, 297 F.3d at 934. Thus, complaints that prison officials violated state regulations

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regarding the inmate appeals process or prison disciplinary proceedings, for example, will not

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support a claim for denial of due process under federal law.

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E. Supervisory Liability and Linkage

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Under § 1983, Plaintiff must link the named defendants to the participation in the violation

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at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th

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Cir. 2010); Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934. 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, and administrators may only be held liable if they “participated in or directed the

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violations, or knew of the violations and failed to act to prevent them,” Taylor, 880 F.2d at 1045;

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accord Starr, 652 F.3d 1202, 1205-08; Corales, 567 F.3d at 570; Preschooler II v. Clark County

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School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189,

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1204 (9th Cir. 1997).

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Simply naming D. D. Ortiz, Associate Warden, Health Care Operations and M.D. Biter,

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Warden, as defendants is insufficient to hold them liable based on a position of authority as Plaintiff

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has not alleged any facts linking the defendant to acts or omissions, which suggest that the defendant

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participated or directed the violations, or knew of the violations and failed to prevent them. Iqbal,

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129 S. Ct. at 1948-49; Ewing, 588 F.3d at 1235. Accordingly, the Court finds that Plaintiff fails to

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state a cognizable claim for relief under § 1983 against D. D. Ortiz, Associate Warden, Health Care

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Operations and M.D. Biter, Warden, based upon supervisory liability.
Page 10 of 14

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F. Inmate Appeals and Defendants Related to Inmate Appeals Process

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Defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise to any claims

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for relief under section 1983 for violation of due process. “[A prison] grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates.” Buckley v. Barlow,

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997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982));

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see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of

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appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641,

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647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann

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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568

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F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a

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prisoner’s administrative appeal cannot serve as the basis for liability under § 1983. Buckley, 997

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F.2d at 495.

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Plaintiff also seeks to impose liability under the Eighth Amendment on individuals related

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to the inmate appeals process including N. Grannis, Chief Inmate Appeals Branch; T. Brewer, Chief

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Executive Appeals Officer; D. D. Ortiz, Associate Warden, Health Care Operations; L. Zamora,

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Chief Appeals; M.D. Biter, Warden; and Dr. N. Patel. Compl. at 1, 3, 23 of Part 1 of Complaint &

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79 of Part 2 of Complaint, Doc. 1. Generally, denying a prisoner’s administrative appeal does not

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cause or contribute to the underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).

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The mere possibility of misconduct is insufficient to support a claim, Iqbal, 129 S. Ct. at 1949-50;

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Moss, 572 F.3d at 969, and there is inadequate factual support for a claim that in denying his inmate

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appeals, defendants knew of and disregarded a substantial risk of harm to Plaintiff. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994). Nevertheless, because prison administrators cannot willfully

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turn a blind eye to constitutional violations being committed by subordinates, there may be limited

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circumstances in which those involved in reviewing an inmate appeal can be held liable under

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section 1983. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006).

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On November 29, 2010, D. D. Ortiz, Associate Warden, Health Care Operations, issued a

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memorandum stating Plaintiff’s appeal at KVSP was still pending. Id. at 79, Part 2 of Complaint.
Page 11 of 14

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On January 27, 2011, T. Brewer, Chief Executive Officer for KVSP, issued a second level response

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to Plaintiff’s appeal. Id. at 70-71. Plaintiff was interviewed about his appeal by Dr. Patel, and on

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September 8, 2010 and September 22, 2010, Plaintiff was seen by the urologist who did not feel that

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methadone was required. Id. at 70. The doctor noted there were no active symptoms of kidney

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stones. Id. On November 4, 2010, Plaintiff was seen and the doctor noted no manifestation of kidney

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stone attacks. Id. at 71. Plaintiff requested methadone on numerous times. Id. On December 1, 2010,

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Plaintiff had a CT Scan of the abdomen and pelvis. Id. On March 24, 2011, L. Zamora, Chief, Office

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of Third Level Appeals, screened out Plaintiff’s appeal for time constraints. Id. at 72.

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The complaint demonstrates that the defendants involved in the appeal process did not

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willfully turn a “blind eye” to constitutional violations but reviewed the entire record and found that

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Plaintiff received adequate medical treatment. Jett, 439 F.3d at 1098.

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Plaintiff’s claims against D. D. Ortiz, Associate Warden, Health Care Operations and M.D.

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Biter, Warden, are even further attenuated as they did not personally deny his appeals. A decision

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by a defendant’s designee provides no basis for a claim as § 1983 does not permit respondeat

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superior liability. Iqbal, 129 S. Ct. at 1948-49; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at

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1235; Jones, 297 F.3d at 934.

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Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under

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§ 1983 based upon the inmate appeals process and individuals related to the inmate appeals process.

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G. Personal Participation and Doe Defendants

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Under § 1983, Plaintiff must demonstrate that each named defendant personally participated

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in the deprivation of his rights. Jones, 297 F.3d at 934. The Supreme Court has emphasized that the

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term “supervisory liability,” loosely and commonly used by both courts and litigants alike, is a

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misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held liable for the

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at 1948.

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Rather, each government official, regardless of his or her title, is only liable for his or her own

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misconduct, and therefore, plaintiff must demonstrate that each defendant, through his or her own

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individual actions, violated plaintiff’s constitutional rights. Id. at 1948–49.

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Plaintiff fails to allege any facts personally linking the Dr. John Doe defendant to the alleged
Page 12 of 14

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rights violations. There is no evidence that this defendant personally participated in the events

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alleged in Plaintiff’s complaint, and a doe defendant cannot be held liable based solely upon a

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supervisory position. Plaintiff cannot proceed against this doe defendant unless he alleges how each

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personally violated, or knowingly directed a violation of his constitutional rights.

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Moreover, “[a]s a general rule, the use of ‘John Doe’ to identify a defendant is not favored.”
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980).

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IV. Conclusion and Order

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

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will provide Plaintiff with the opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d

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1122, 1130 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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

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Finally, an amended complaint supersedes 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 superseded pleading,” Local Rule 220. Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (reference to original and first amended complaints

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was precluded by doctrine that an amended pleading supersedes the original pleading). Therefore,

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

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complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d

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

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//

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//

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//

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//
Page 13 of 14

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is DISMISSED for failure to state a claim upon which relief
may be granted;

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2.

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

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3.

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

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first amended complaint; and

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4.

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If Plaintiff fails to file a first 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:
7j8cce

July 12, 2012
UNITED STATES MAGISTRATE JUDGE

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