Diaz v. Vasquez, et al.

Filing 17

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and ORDER DENYING 2 , 6 Motions for Preliminary Injunction, signed by Magistrate Judge Gerald B. Cohn on 11/9/2012. First Amended Complaint due within twenty-one (21) 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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MIGUEL ENRIQUE DIAZ,

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Plaintiff,

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CASE NO. 1:12-cv-00732-GBC (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
CAPT. VASQUEZ, et al.,

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Defendants.

OR DER DENYING M O T IO N S
PRELIMINARY INJUNCTION
(Doc. 2; Doc. 6)

FOR

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AMENDED COMPLAINT
TWENTY-ONE DAYS

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DUE

WITHIN

_____________________________________/
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I.

Procedural History

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Miguel Enrique Diaz (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis,

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in this civil rights action pursuant to 42 U.S.C. § 1983. On May 4, 2012, Plaintiff filed a motion for

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emergency injunction without ever filing a complaint. Doc. 1; Doc. 2. On May 14, 2012, Plaintiff

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filed another motion for preliminary injunction. Doc. 6. The Court will treat Plaintiff’s motion as

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a motion for preliminary injunction and also as a complaint. Doc. 2.

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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 California State Prison, Corcoran (CSPC) in

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Corcoran, California. The events central to Plaintiff’s complaint occurred while he was at prisoner

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at California Substance Abuse Treatment Facility (CSATF) in Corcoran, California. Doc. 2. In the

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complaint, Plaintiff fails to name any defendants. Doc. 2. Plaintiff seeks injunctive relief. Doc. 2.

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Plaintiff alleges that he arrived to CSATF on April 17, 2012. Doc. 2 at 2.On April 30, 2012,

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Correctional Officer Lozano denied Plaintiff a reasonable accommodation. Doc. 2 at 2. Officer

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Lozano called Lieutenant J. Gallagher who told Plaintiff that all state issued shoes are soft shoes.

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Doc. 2 at 2. Gallagher stated that he spoke to C. M. Heck Agpa who stated that Plaintiff’s “chrono”1

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was invalid. Doc. 2 at 2. Plaintiff asserts that his chrono specifically states that “state issued shoes

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cause further tendon injury and bleeding in this inmate.” Doc. 2 at 2. Plaintiff argues that the denial

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of any reasonable accommodation in the memorandum issued on March 28, 2012, by Captain

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Plaintiff does not define the meaning of “chrono.” A medical “chrono” is a recommendation, usually
related to an inmate's medical condition or course of treatment, issued by a prison physician. See e.g., Cal. Code
Regs. tit. 15, § 3043.5(d) (describing the medical chrono also known as “Form 128-C”); see generally Cal. Code
Regs. tit. 15, § 3000 (defining “general chrono” written on CDC Form 128-B “which is used to document
information about inmates and inmate behavior”).

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Vasquez and signed by Lieutenant Morales violated the ADA and constitutes cruel and unusual

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punishment. Doc. 2 at 2-3. Plaintiff alleges that he is a diabetic with lower mobility impairments

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and is insulin dependant. Doc. 2 at 2. Plaintiff argues that he is being subjected to malicious cruelty

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and intentional reckless disregard of his ADA rights and is suffering from the wilful infliction of

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pain and suffering by violating his chrono. Doc. 2 at 2. Plaintiff states that his tendon injury is

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documented by the Chief Medical Officer at CSP Solano where he was formerly housed and

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Associate Warden Shirley at CSP Solano granted his ADA appeal. Doc. 2 at 3.

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IV.

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Applicable Law and Analysis
A.

Eighth Amendment Deliberate Indifference to Serious Medical Need

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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 (1976)). The two part test for deliberate

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indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that

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‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and

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

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indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)

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(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.” Jett, 439 F.3d at 1096 (citing

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McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested “when prison officials

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deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which

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prison physicians provide medical care.” Jett, 439 F.3d at 1096 (citing McGuckin at 1060). Where

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a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm

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in order for the prisoner to make a claim of deliberate indifference to serious medical needs.

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McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th

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Cir. 1985)).

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1.

Analysis

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Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff alleges that various

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individuals were indifferent by failing to provide him with soft soled shoes in spite of a medical

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chrono issued from another prison stating that he needs soft soled shoes. However, according to

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Plaintiff’s complaint, Gallagher said that all of the state issued shoes are soft shoes, thus meeting

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Plaintiff’s needs. A difference of opinion over what constitutes proper treatment does not constitute

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an Eighth Amendment violation. See Estelle, 429 U.S. at 105-06 (emphasis added); Sanchez v. Vild,

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891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’r, 766 F.2d 404, 407

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

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

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Plaintiff believes that a different pair of soft sole shoes would better than state issued soft sole shoes,

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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); see also Allison v. Prison Health Services, Inc., 2009 WL 205228, at *8 (D. Idaho

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Jan. 28, 2009) (finding that Plaintiff’s assertion that a different orthotic device would provide better

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treatment was insufficient to maintain a claim of an Eighth Amendment violation).

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B.

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Plaintiff mentions the American with Disabilities Act, which "prohibit[s] discrimination on

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the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). "To establish a

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violation of Title II of the ADA, a plaintiff must show that (1)[he] is a qualified individual with a

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disability; (2)[he] was excluded from participation in or otherwise discriminated against with regard

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to a public entity's services, programs, or activities; and (3) such exclusion or discrimination was by

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reason of [his] disability." Lovell, 303 F.3d at 1052. The treatment, or lack of treatment, concerning

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a medical condition does not provide a basis upon which to impose liability under the ADA. Burger

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v. Bloomberg, 418 F.3d 882, 882 (8th Cir.2005) (medical treatment decisions not a basis for RA or

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ADA claims); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.2005) (RA not

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intended to apply to medical treatment decisions); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134,

ADA

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1144 (10th Cir.2005) (medical decisions not ordinarily within scope of ADA or RA); Bryant v.

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Madigan, 84 F.3d 246, 249 (7th Cir.1996) ("The ADA does not create a remedy for medical

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malpractice."). Further, Plaintiff may name the appropriate entity or state officials in their official

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capacities, but he may not name individual prison employees in their personal capacities; individual

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liability is precluded under the ADA. Shaughnessy v. Hawaii, No. 09-00569 JMS/BMK, 2010 WL

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2573355, at *8 (D. Hawai'i June 24, 2010); Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P,

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2009 WL 3763798, at *5-6 (E.D.Cal. Nov.9, 2009); Roundtree v. Adams, No. 1:01-CV-06502 OWW

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LJO, 2005 WL 3284405, at *8 (E.D.Cal. Dec.1, 2005).

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Plaintiff has not shown that he was intentionally discriminated against based on any

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disability, his allegations relate only to Plaintiff’s soft shoes, which the complaint states that he has,

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and he names only individual defendants. For all of these reasons, Plaintiff fails to state a claim for

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violation of the ADA.

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C.

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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 v. Williams, 297 F.3d at 934. Liability may not be

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imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S. Ct. at 1948-

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49; Ewing, 588 F.3d at 1235, and administrators may only be held liable if they “participated in or

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

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales,

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567 F.3d at 570; Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or

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inaction must be attributable to defendants and while the creation or enforcement of, or acquiescence

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in, an unconstitutional policy may support a claim, the policy must have been the moving force

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behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir.

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2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989).

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Linkage

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V.

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Preliminary Injunction
“A preliminary injunction is an extraordinary remedy never awarded as a matter of
Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376

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right.”

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(2008)(citation omitted). “A plaintiff seeking a preliminary injunction must establish that

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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

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in the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded

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upon a clear showing that the plaintiff is entitled to relief.

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omitted)(emphasis added). The Ninth Circuit has made clear that “[T]o the extent that our

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cases have suggested a lesser standard, they are no longer controlling, or even viable.”

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McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010), quoting Am. Trucking

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Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party

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has the burden of proof on each element of the test. Environmental Council of Sacramento

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v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). ‘A federal court may issue an injunction

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if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may

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not attempt to determine the rights of persons not before the court.’ Price v. City of Stockton, 390

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F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda v. U.S. INS, 753 F.2d 719, 727 (9th Cir. 1985).

Id. at 376 (citation

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Plaintiff has not met his burden as the moving party. “[A] preliminary injunction is an

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extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear

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showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

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(quotations and citations omitted) (emphasis in original). A mandatory preliminary injunction, such

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as that sought by plaintiff in the instant motions, “is subject to heightened scrutiny and should not

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be issued unless the facts and the law clearly favor the moving party.” Dahl v. Hem Pharmaceuticals

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Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). As the moving party, it is Plaintiff who bears the burden.

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In the Court’s above screening of Plaintiff’s complaint, the Court concluded that Plaintiff

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failed to state a claim. Thus Plaintiff has failed to demonstrate a likelihood of success on the

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merits or raise serious questions going to the merits. Therefore, the Court, in its discretion,

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will deny the motions for a preliminary injunction.
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VI.

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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).

Conclusions and Order

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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 "Second Amended Complaint," refer to

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the 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 May 4, 2012, is dismissed for failure to state a claim upon

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which relief may be granted;

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3.

Plaintiff’s motions for injunctive relief are denied (Doc. 2; Doc. 6);

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3.

Within twenty-one (21) days from the date of service of this order, Plaintiff shall file

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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

November 9, 2012
UNITED STATES MAGISTRATE JUDGE

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