Cortes v. CDCR, et al.

Filing 9

ORDER DISMISSING Complaint, WITH LEAVE to File AMENDED COMPLAINT Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 2/6/12. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

MANUAL CORTES,

10

Plaintiff,

11
12

CASE NO. 1:11-cv-01185 GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
CDCR, et al.,

13

(ECF No. 1)
Defendants.
/

14
15
16

Screening Order
I.

17

Screening Requirement
Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil rights

18

action pursuant to 42 U.S.C. § 1983.

19

Plaintiff has consented to magistrate judge jurisdiction

pursuant to 28 U.S.C. § 636©).

20

The Court is required to screen complaints brought by prisoners seeking relief against a

21

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

22

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

23

“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

24

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

25

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

26

dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

27

claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

28

///
1

1

“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

II.

Plaintiff’s Claims

12

Plaintiff, formerly incarcerated at the Substance Abuse Treatment Facility at Corcoran

13

(SATF), brings this action against correctional officials employed by the California Department of

14

Corrections and Rehabilitation at SATF. Plaintiff names the following defendants: Chief Medical

15

Officer A. Enenmoh; Warden Kathleen Allison; CDCR Secretary Matthew Cate; California

16

Department of Corrections and Rehabilitation.

17

This action proceeds on the original complaint filed on July 19, 2011. Plaintiff claims that

18

he was denied adequate medical care in violation of the Eighth Amendment’s prohibition on cruel

19

and unusual punishment.

20

On October 26, 2009, Plaintiff filed an inmate grievance, requesting treatment for back pain

21

and requesting that he be given blood tests and prescribed thyroid medication. Plaintiff did not

22

receive a response to his grievance.

23

On January 13, 2010, Plaintiff filed another grievance, indicating that he is “no longer

24

receiving the proper treatment nor the proper dose of medication (reduce to 25 mg of

25

Levothyroxine).” Plaintiff “requested chronos from medical unit but medical unit refused to

26

provide.”

27

On June 22, 2010, Plaintiff filed another grievance, indicating that “Plaintiff has explained

28

to medical staff that there is no longer required thyroid medication,” as he had been put on a low
2

1

dosage medication. Plaintiff filed another grievance on August 10, 2010,complaining that “medical

2

staff” has “refused to provide Plaintiff with the proper dosage for treatment.”

3

On August 31, 2010, Plaintiff received a response to the August 10th grievance. The response

4

indicated that Plaintiff “failed to demonstrate that the issues that were appealed caused adverse

5

effects.”

6

A.

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay

18

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

19

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

20

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

Medical Care

21

Here, the Court finds Plaintiff’s allegations to be vague. Plaintiff sets forth generalized

22

allegations regarding his health care but fails to specifically allege conduct as to each Defendant.

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

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

5

Plaintiff need not, however, set forth legal arguments in support of his claims. In order to

6

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

7

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

8

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

9

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

10

Plaintiff has failed to do so here.

11

Further, Plaintiff only names individuals employed in a supervisory capacity. Under section

12

1983, Plaintiff must prove that the Defendants holding supervisory positions personally participated

13

in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no

14

respondeat superior liability, and each defendant is only liable for his or her own misconduct.

15

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). A supervisor may be held liable for the

16

constitutional violations of his or her subordinates only if he or she “participated in or directed the

17

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

18

1040, 1045 (9th Cir. 1989); also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler

19

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

20

Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Plaintiff has not alleged any facts indicating

21

personal participation by any of the individual defendants.

22

As to Defendant California Department of Corrections and Rehabilitation, “The Eleventh

23

Amendment prohibits federal courts from hearing suits brought against an unconsenting state.

24

Though its language might suggest otherwise, the Eleventh Amendment has long been construed to

25

extend to suits brought against a state both by its own citizens, as well as by citizens of other states.”

26

Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991); see also

27

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Puerto Rico Aqueduct Sewer Authority

28

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676,
4

1

677 (9th Cir. 1991).

2

The Eleventh Amendment bars suits against state agencies as well as those where the

3

state itself is named as a defendant. See Natural Resources Defense Council v. California

4

Department of Transportation, 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor

5

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a

6

state agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community

7

College District, 861 F.2d 198, 201 (9th Cir. 1989). The California Department of Corrections and

8

Rehabilitation, as an agency of the state, is therefore immune from suit under Section 1983.

9

III.

Conclusion and Order

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original

20

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

21

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

22

1474.

23

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

24

1.

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

25

2.

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

26

3.

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

27
28

amended complaint;
4.

Plaintiff may not add any new, unrelated claims to this action via his amended
5

1

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

2

complaint; and

3

5.

4

If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.

5
6
7

IT IS SO ORDERED.
Dated:
6i0kij

February 6, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6