Pulido v. Igbinosa, et al.

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 7/30/2012. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL PULIDO,

CASE NO. 1:11-cv-01711-DLB PC

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Plaintiff,

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v.

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ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM
WITH LEAVE TO AMEND

F. IGBINOSA, et al.,

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(ECF No. 1)
Defendants.

RESPONSE DUE WITHIN THIRTY
DAYS

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I.

Background

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Plaintiff Rafael Pulido (“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 action pursuant to 42 U.S.C. § 1983. On October 14, 2011, Plaintiff

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filed his complaint. ECF No. 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).

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The 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).
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, 556 U.S. 662, 678 (2009) (citing Bell

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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 to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are

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not. Id.

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II.

Summary of Complaint

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Plaintiff is incarcerated at Pleasant Valley State Prison (“PVSP”) in Coalinga, California,

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where the events giving rise to this action occurred. Plaintiff names the following individuals as

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Defendants: F. Igbinosa, health care manager and medical doctor at PVSP; Barry J. Green and

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Randolph Wilson, III, PA-C at PVSP; and T. Vaysman, R.N. at PVSP.

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Plaintiff alleges the following. Plaintiff made a medical request to Defendant Barry

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Green. Plaintiff complained of having bullet fragments in his left hand that were causing

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Plaintiff a lot of pain and discomfort. Based on Plaintiff’s submitted exhibits, this wound

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occurred in 2005. Pl.’s Compl., pp. 14-15. A doctor had recommended surgery at some point to

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remove the bullet pieces, but instead of doing something, Defendant Green cut off Plaintiff’s

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pain medication for Tylenol #3 and Neurontin, finding nothing wrong with Plaintiff’s arms.

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Based on Plaintiff’s exhibits, Plaintiff had a pre-existing injury which occurred in

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February 22, 2008 in Delano, California, when Plaintiff fractured his right hand, but the wound

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had healed. Pl.’s Compl., pp. 14-15. Plaintiff fell down at some point, hurting his right arm.

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Plaintiff reported this to Defendant Vaysman, who checked and found nothing wrong with it.

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She determined that Plaintiff was receiving the right pain medication. Based on Plaintiff’s

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submitted exhibits, Plaintiff received naproxen for his pain. Plaintiff saw Defendant Wilson and

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informed him of his issues with his right forearm and left hand. Defendant Wilson provided

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Plaintiff Tylenol #3 for ten days, also concluding that nothing was wrong and Plaintiff needed

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rest only. Defendant Igbinosa is liable because he is responsible for medical treatment at PVSP.
Plaintiff contends that Defendants violated Plaintiff’s right to be free from cruel and

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unusual punishment in violation of Eighth Amendment. Plaintiff requests monetary damages

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and that CDCR medical staff be properly trained and professionally qualified.

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III.

Analysis

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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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“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 any Defendants. Plaintiff complains of chronic pain

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in his left hand right forearm, which is sufficient to satisfy the objective prong. Farmer, 511 U.S.

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at 834. As to Defendant Green, Plaintiff complains that Defendant Green removed Plaintiff from

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his Tylenol # 3 and Neurontin medication, finding that there was nothing wrong with Plaintiff’s

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arms. Plaintiff submits an inmate grievance as an exhibit in support, in which Plaintiff

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complains that Defendant Green had removed Plaintiff from his pain medication without

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examining Plaintiff or his medical history. Based on that allegation, Plaintiff fails to allege facts

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which indicate that Defendant Green knew of and disregarded a serious medical need.

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Defendant Green did not know of Plaintiff’s serious medical need, and thus could not be

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deliberately indifferent.

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Plaintiff fails to state a claim against Defendant Vaysman. Defendant Vaysman

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examined Plaintiff after he had fallen, and determined that Plaintiff was receiving the proper

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medication and nothing was wrong with Plaintiff’s arms. If Plaintiff is contending that

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Defendant Vaysman misdiagnosed Plaintiff’s injury, Plaintiff does not state a valid 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 Wilson. Defendant Wilson actually

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provided Plaintiff with the medication that he had requested. If Defendant Wilson acted

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reasonably in response to Plaintiff’s serious medical need, then Defendant Wilson is not liable

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for an Eighth Amendment violation. Farmer, 511 U.S. at 844 (“[P]rison officials who actually

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knew of a substantial risk to inmate health or safety may be found free from liability if they

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responded reasonably to the risk, even if the harm ultimately was not averted.”). Plaintiff states

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at most a difference of opinion between a medical professional and a prisoner, which fails to

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state a claim. Toguchi, 391 F.3d at 1060.

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Plaintiff fails to state a claim against Defendant Igbinosa. Plaintiff’s exhibits indicate

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that Defendant Igbinosa responded to Plaintiff’s grievance concerning this action at the second

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level of review, partially granting it. Pl.’s Compl., pp. 9-10. Defendant Igbinosa partially

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granted the grievance insofar as Plaintiff’s medical complaint was reviewed by several other

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physicians who deemed the medication regimen to be medically appropriate. Based on this

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exhibit, it appears that Defendant Igbinosa acted reasonably in response to Plaintiff’s serious

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medical need.

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To the extent that Plaintiff seeks to establish liability based on Defendant Igbinosa’s
supervisory role, Plaintiff fails to state a claim. The term “supervisory liability,” loosely and

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commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 677.

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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 676. Rather, each government

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

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named defendant holds a supervisory position, the causal link between the defendant and the

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claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858,

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862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for

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relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating that the

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defendant either: personally participated in the alleged deprivation of constitutional rights or

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knew of the violations and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989).

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Plaintiff fails to allege facts which demonstrate that Defendant Igbinosa personally

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participated in an alleged deprivation of constitutional rights or knew of constitutional violations

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and failed to act to prevent them.

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IV.

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Conclusion and Order
Plaintiff fails to state any cognizable federal claims against any Defendants. The Court

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will provide Plaintiff with one 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

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his 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. See Iqbal, 556 U.S. at 678. 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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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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1.

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 serve

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and file a first amended complaint within thirty (30) days from the date of service of this order;
and
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If Plaintiff fails to comply with this order, the Court will dismiss this action for

failure to obey a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

July 30, 2012

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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L. Beck

3b142a

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