Angel v. Brazelton, et al.

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gerald B. Cohn on 10/31/2012. Amended Complaint due by 12/3/2012. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARLOS ANGEL,

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Plaintiff,

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CASE NO. 1:12-cv-00272-AWI-GBC (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
P. BRAZELTON, et al.,

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(Doc. 1)

Defendants.

AMENDED COMPLAINT
THIRTY DAYS

DUE

WITHIN

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/

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I.

Procedural History

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Carlos Angel (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis, in this
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civil rights action pursuant to 42 U.S.C. § 1983. On February 24, 2012, Plaintiff filed his original
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complaint which is currently before the Court. Doc. 1.
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II.

Screening Requirement

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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v.

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United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898

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(9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the

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allegations of the complaint in question, and construe the pleading in the light most favorable to the

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plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22

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(1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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III.

Plaintiff’s Complaint

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Plaintiff is currently a state prisoner at the R. J. Donovan Correctional Facility in San Diego,

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California. The events central to Plaintiff’s complaint occurred while he was incarcerated at Pleasant

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Valley State Prison (PVSP) in Coalinga, California. Doc. 1. In the complaint, Plaintiff names P.

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Brazelton (Warden/Acting Warden at PVSP) as a defendant in this action. Doc. 1 at 2. Plaintiff

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seeks monetary damages and injunctive relief. Doc. 1 at 6.

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Plaintiff alleges that for over a year he submitted to examination by PVSP health care

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services for an eye treatment known as Pterygium removal. Doc. 1 at 3. Plaintiff’s eye condition

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causes pain that effects all aspects of Plaintiff’s life. Doc. 1 at 3. Plaintiff was sent to an outside

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medical specialist, who after a thorough and exhaustive examination concluded that Pterygium

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removal was needed. Doc. 1 at 3. Plaintiff’s request for surgery was denied by Utilization

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Management (UM) and deemed “not medically necessary at this time.” Plaintiff proceeded with the

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administrative grievance process to no avail. Doc. 1 at 3. A year has past and his condition has

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worsened. Plaintiff asserts that Defendants have been deliberately indifferent by ignoring Plaintiff’s

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request for eye surgery. Doc. 1 at 3.

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IV.

Analysis

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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

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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 by 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).

Eighth Amendment Deliberate Indifference

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“Mere negligence in diagnosing or treating a medical condition, without more, does not

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violate a prisoner's Eighth Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

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(quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks

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omitted). Additionally, to state a viable claim, Plaintiff must demonstrate that each named defendant

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personally participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49

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(2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may

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not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct.

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at 1948-49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they “participated

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in or directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

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2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

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Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204

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(9th Cir. 1997).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060
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(9th Cir. 2004). “A difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel

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regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242

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(9th Cir. 1989). To prevail, Plaintiff “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious

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disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1986) (internal citations omitted).

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Analysis

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Plaintiff’s allegations that a medical opinion from an outside specialist he saw before

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incarceration and an opinion from prison physician differ is insufficient to state a claim. See Toguchi

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v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.

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1981) (internal citation omitted); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The Court may

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consider exhibits attached to the complaint that contradict a plaintiff’s allegations. See Tyler v.

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Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First Boston Corp., 815 F.2d 1265, 1267

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(9th Cir. 1987). Although Plaintiff asserts that Defendants were deliberately indifferent, Plaintiff’s

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attachments demonstrate that he was receiving treatment in the form of Ketorolac Thomethamine

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drops. Doc. 1 at 8. To the extent that Plaintiff’s condition has worsened and Defendants have failed

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to identify the correct medical condition or appropriate medical treatment, such action, at most would

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amount to negligence, and negligence fails to state a deliberate indifference claim. ” Lopez v. Smith,

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203 F.3d 1122, 1131 (9th Cir. 2000).

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B.

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The Civil Rights Act under which this action was filed provides:

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Linkage Requirement

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell

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v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The

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Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right,

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within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In

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order to state a claim for relief under section 1983, Plaintiff must link each named defendant with

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some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights.

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Analysis

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Although Plaintiff lists Brazelton (Warden/Acting Warden at PVSP) as a defendant in this

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action, Plaintiff fails to explain what specific act or omission Defendant Brazelton did to cause the

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constitutional deprivation. Plaintiff alleges that he repeatedly complained of his medical condition

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and his needs were ignored, however, Plaintiff needs to specify: 1) who were the individuals; 2)

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when and how each individual was aware of Plaintiff’s serious medical need; and 3) what specific

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act or omission each individual did or failed to do.

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V.

Conclusions and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding

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new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007).

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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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Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009). Although accepted as true, the “[f]actual allegations

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

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v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. An amended complaint supercedes the
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original complaint, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1

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n.1 (9th Cir. Aug. 29, 2012) (en banc), and it must be “complete in itself without reference to the

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prior or superceded pleading,” Local Rule 220. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled "Amended Complaint," refer to the

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appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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

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Plaintiff’s complaint, filed February 24, 2012, is dismissed for failure to state a claim

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upon which relief may be granted;

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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; and

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4.

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If Plaintiff fails to file an 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:
0jh02o

October 31, 2012
UNITED STATES MAGISTRATE JUDGE

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