Miller v. Akanno et al

Filing 14

First Screening ORDER DISMISSING AMENDED COMPLAINT, WITH LEAVE TO AMEND, for Failure to State a Claim, signed by Magistrate Judge Sheila K. Oberto on 3/6/13. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GERALD LEE MILLER, JR.,

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Plaintiff,

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CASE NO. 1:12-cv-01013-LJO-SKO PC
FIRST SCREENING ORDER DISMISSING
AMENDED COMPLAINT, WITH LEAVE TO
AMEND, FOR FAILURE TO STATE A CLAIM

v.
DR. J. AKANNO, M.D., et al.,

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(Doc. 13)

Defendants.

THIRTY-DAY DEADLINE
/

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First Screening Order
I.

Screening Requirement and Standard

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Plaintiff Gerald Lee Miller, Jr., a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on June 22, 2012. On January 22, 2013,

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Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a). Plaintiff seeks

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damages and injunctive relief for the violation of his rights under the United States Constitution.

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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 an 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 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d

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1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s

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claims must be facially plausible to survive screening, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678

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(quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Discussion

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A.

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Plaintiff, who is incarcerated at Kern Valley State Prison (KVSP), bring this actions against

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Dr. J. Akanno, Lab Technician Japee, and Health Care Services Chief Executive Officer L. D.

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Zamora for retaliation in violation of the First Amendment and denial of medical care in violation

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of the Eighth Amendment.

Allegations

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Plaintiff alleges that on July 13, 2011, he was given contaminated food at Calipatria State

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Prison, and he continues to suffer from health problems as a result. While still at CSP-Calipatria,

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a biopsy was ordered for Plaintiff. However, before it was done, he was transferred to KVSP.

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On December 14, 2011, Plaintiff requested to see a doctor at KVSP because he was still sick

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and suffering. Plaintiff was told that he was scheduled for the biopsy within a few weeks. On
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December 23, 2011, Plaintiff’s stomach problems worsened and he was unable to eat without

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vomiting, so he was placed on dicyclomine by Dr. Chen.

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On January 7, 2012, Plaintiff was transferred away from KVSP for a civil jury trial.1 Plaintiff
alleges that Defendant Akanno was once a party to the case.2

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Plaintiff was transferred back to KVSP on February 3, 2012, still suffering from illness and

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stomach pain. Plaintiff was taken to the medical triage area on February 7, 2012, where he was

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given a GI cocktail for his stomach pain, scheduled for a follow-up with Defendant Akanno within

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two weeks, and returned to his housing unit.

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On February 14, 2012, Defendant Akanno refused to see Plaintiff, purportedly because

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Plaintiff refused a blood pressure check. Plaintiff was subsequently seen by Defendant Akanno on

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March 28, 2012, and a blood test was ordered.

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Defendant Japee drew Plaintiff’s blood on April 16, 2012, but refused to label the tube, in

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violation of prison policy. Plaintiff alleges that a mix-up occurred as a result and he was denied

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medical treatment.

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On April 24, 2012, Plaintiff’s blood test came back negative, and on May 1, 2012, Plaintiff
put in a request to see a doctor but was never summoned for an appointment.

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On May 22, 2012, Plaintiff was seen by Defendant Akanno, who refused to do anything for

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Plaintiff and requested that Plaintiff leave his office. Plaintiff stated to Defendant Akanno that he

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knew there were other procedures and tests which could be run, such as the biopsy that had been

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ordered but never performed. Defendant Akanno did not respond to that statement but told Plaintiff

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that he refused medical treatment on April 24, 2012, and on May 2, 2012. Plaintiff said that the

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institution was on lock-down, inmates had to be escorted, and building officers would notify inmates

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in advance of medical escorts, but Plaintiff was never told he had medical appointments on those

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dates and he did not refuse the appointments.

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The Court takes judicial notice of case number 1:08-cv-01233-BTM-W MC, in which a jury trial
commenced on January 9, 2012, at the federal courthouse in Sacramento.
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The Court takes judicial notice of the fact that Defendant Akanno was a defendant in case number 1:08-cv01233-BTM-W MC, and prior to trial, he was granted summary judgment.

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B.

Claims
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Retaliation

Plaintiff alleges that he is being denied medical treatment in retaliation against him for
litigating the suit against Defendant Akanno.

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition

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the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65

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F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment

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retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance

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a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord

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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269

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(9th Cir. 2009).

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Plaintiff’s amended complaint contains no facts supporting his conclusory claim that

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Defendants Akanno and Japee retaliated against him for litigating another case against Akanno.

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Speculative allegations do not suffice to support a claim for relief.

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2.

Medical Care
a.

Legal Standard

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The Eighth Amendment of the United States Constitution protects prisoners not only from

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inhumane methods of punishment but also from inhumane conditions of confinement. Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847, 114

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S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation

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marks omitted). While conditions of confinement may be, and often are, restrictive and harsh, they

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must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing

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Rhodes, 452 U.S. at 347) (quotation marks omitted).

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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

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clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in

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prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted).

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To maintain an Eighth Amendment claim, inmates must show deliberate indifference to a substantial

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risk of harm to their health or safety. E.g., Farmer, 511 U.S. at 847; Thomas, 611 at 1151-52; Foster

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v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at

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731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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“To establish . . . [a] violation, a plaintiff must satisfy both an objective standard - that the

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deprivation was serious enough to constitute cruel and unusual punishment - and a subjective

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standard - deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). For

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claims arising out of medical care in prison, Plaintiff must first show the existence of an objectively

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serious medical need, and then show deliberate indifference to that need. Snow, 681 F.3d at 985;

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Wilhelm, 680 F.3d at 1122; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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b.

Deficiencies

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Plaintiff may be able to amend to state a cognizable claim for denial of medical care, but at

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this juncture, his allegations are too conclusory to support a claim. The Constitution does not require

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medical staff at Kern Valley State Prison to continue with the course of treatment prescribed at

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Plaintiff’s prior institution, and the decision to forego the biopsy is not sufficient to support a claim.

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Snow, 681 F.3d at 987-88; Wilhelm, 680 F.3d at 1122. It appears from Plaintiff’s amended

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complaint that he is being seen and blood tests have been ordered on more than one occasion. While

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Plaintiff alleges that more can and should be done for him, there is simply no sufficient factual

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support for a claim that Defendant Akanno is acting with deliberate indifference to Plaintiff’s

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medical needs.

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Likewise, although Plaintiff alleges that his negative blood test results are inaccurate because

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medical staff are mixing up the results, there is no underlying factual support for that claim, which

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appears to be speculative on Plaintiff’s part. Further, the fact that Defendant Japee did not label

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Plaintiff’s tube in front of Plaintiff is not sufficient to support a claim against Japee.

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3.

Claims Against Defendant Zamora

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Plaintiff’s claims for relief against Defendant Zamora arise out of Zamora’s action in denying

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Plaintiff’s inmate appeal at the third and final level of review in February 2012. (Amend. Comp.,

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¶¶46-49.) However, the existence of an inmate appeals process does not create any substantive

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rights and Plaintiff’s disagreement with the denial of his appeal does not support a claim for relief.

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). Further, the involvement of appeals coordinators in reviewing a complaint of misconduct

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generally does not provide a basis upon which to impose liability against them because they were

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not involved in the underlying violation at issue. George v. Smith, 507 F.3d 605, 609 (7th Cir.

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2007).

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Although Plaintiff’s word choice indicates his intent to pursue claims against Defendant

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Zamora for retaliation and for denial of medical care, there are no facts which support either claim.

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Rather, the sole basis for Plaintiff’s claims is his belief that his appeal was wrongfully denied and

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that does not suffice to support a claim under section 1983.

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4.

Conspiracy

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Finally, Plaintiff alleges that officials at KVSP and CSP-Calipatria are conspiring to violate

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his rights. However, there are no facts supporting the existence of an agreement or a meeting of the

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minds to violate Plaintiff’s constitutional rights, and no conspiracy claim lies against any of the

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named defendants. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d

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423, 441 (9th Cir. 2001).

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III.

Conclusion and Order

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

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section 1983. The Court will provide Plaintiff with the opportunity to file a second amended

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complaint. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not

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

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George, 507 F.3d at 607.

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Plaintiff’s second amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state

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what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal,

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556 U.S. at 676-77. 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 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County,

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693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without reference

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to the prior or superceded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s amended complaint is dismissed, with leave to amend, for failure to state
a claim under section 1983;

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2.

The Clerk’s Office shall send Plaintiff a civil rights 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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second amended complaint; and

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4.

If Plaintiff fails to file a second amended complaint in compliance with this order,

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this action will be dismissed, with prejudice, for failure to state a claim under section

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1983.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 6, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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