Thanousone v. Mims et al

Filing 9

ORDER DISMISSING ACTION for Failure to State a Claim upon Which Relief may be Granted signed by Magistrate Judge Gary S. Austin on 11/08/2012. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THANOUSONE VOLARAT,

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CASE NO. 1:12-cv-01275 GSA PC

Plaintiff,

ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED

v.
MARGARET MIMS, et al.,
Defendants.
/

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Screening Order

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Plaintiff is a Fresno County Jail inmate prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge

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jurisdiction pursuant to 28 U.S.C. § 636(c). This action proceeds on the October 30, 2012, first

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amended complaint filed in response to the October 4, 2012, order dismissing the original complaint

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and granting Plaintiff leave to file an amended complaint.

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Plaintiff is a pretrial detainee housed at the Fresno County Jail. Plaintiff claims that he is

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being denied adequate medical care. In the original complaint, Plaintiff named the following

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individual defendants: Sheriff Margaret Mims; Edward Moreno, M.D., Director of the Fresno

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County Department of Health; George Laird, Ph.D., Division Manager, Correctional Health

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Division, Fresno County Department of Health; Pratap Narayen, M.D., Medical Director,

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Correctional Health Division, Fresno County Department of Health.

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Plaintiff alleged that he made numerous requests for medical services, including the filing

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of grievances, and that he “still hasn’t been treated properly and still hasn’t been seen by outside
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professional medical staff.” Plaintiff alleged that due to systematic failure to provide medical care,

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he had to endure unnecessary pain, injury and suffering. Plaintiff alleged generally that defendants,

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in their supervisory capacity, were responsible for the health care and safety of prisoners.

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Plaintiff was advised that in order to state a claim under section 1983, he must allege facts

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indicating that (1)defendants acted under color of state law and (2) defendants deprived him of rights

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secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185

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(9th Cir. 2006). “A person deprives another of a constitutional right, where that person ‘does an

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affirmative act, participates in another’s affirmative acts, or omits to perform an act which [that

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person] is legally required to do that causes the deprivation of which complaint is made.” Hydrick

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v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 9th Cir.

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1978)).

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The Eighth Amendment protects inmates from cruel and unusual punishment, which includes

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the denial of medical care. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). Pretrial detainees, by

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contrast, are protected under the Due Process Clause of the Fourteenth Amendment. Conn v. City

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of Reno, 591 F.3d 1081 (9th Cir. 2010), citing Or. Advocacy Ctr. v. Mink, 322 f.3d 1101, 1120 (9th

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Cir. 2003).

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The Eighth and Fourteenth Amendments both guarantee that inmates and detainees receive

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constitutionally adequate medical and mental health care. Doty v. County of Lassen, 37 F.3d 540,

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546 (9th Cir. 1994). “An official’s deliberate indifference to a substantial risk of serious harm to an

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inmate - including the deprivation of a serious medical need - violates the Eighth Amendment, and

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a fortiori, the Fourteenth Amendment.” Conn, 591 F.3d at1094, quoting Farmer v. Brennan, 511

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U.S. 825 (1994); Frost v. Agnos, 152 F.3d 1124, (9th Cir. 1998).

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In the order dismissing the first amended complaint, the Court found Plaintiff’s allegations

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to be vague. Plaintiff set forth generalized allegations regarding his health care, but failed to charge

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each individual defendant with specific conduct that caused him injury. Even under a “deliberate

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indifference” theory of individual liability, Plaintiff must still allege sufficient facts to plausibly

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establish the defendant’s “knowledge of” and “acquiescence in” the unconstitutional conduct of his

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subordinates. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). The Court specifically held
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that Plaintiff’s “bald” and “conclusory” allegations were insufficient to establish individual liability

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under 42 U.S.C. § 1983. See Iqbal, 556 U.S. at 569-72.

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Further, all of the defendants named by Plaintiffs are employed in a supervisory capacity, and

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Plaintiff appeared to be alleging that they are liable on the ground that the health of inmates in the

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Fresno County Jail is their responsibility. Under section 1983, Plaintiff must prove that the

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Defendants holding supervisory positions personally participated in the deprivation of his rights.

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability, and

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each defendant is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 673

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(2009). A supervisor may be held liable for the constitutional violations of his or her subordinates

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only if he or she “participated in or directed the violations, or knew of the violations and failed to

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act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652

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F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);

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

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

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suggesting that any of the defendants personally participated any conduct that caused injury to

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Plaintiff, or knew of any particular violation and failed to act to prevent or correct it. The Court

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advised Plaintiff that vague allegations of inadequate medical care, with nothing more, failed to state

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a claim for relief under section 1983. The complaint was therefore be dismissed.

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Plaintiff was directed that he need not, however, set forth legal arguments in support of his

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claims. Plaintiff was specifically advised that in order to hold an individual defendant liable, he

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must name the individual defendant, describe where that defendant is employed and in what

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capacity, and explain how that defendant acted under color of state law. Plaintiff should state

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clearly, in his or her own words, what happened. Plaintiff must describe what each defendant, by

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name, did to violate the particular right described by Plaintiff.

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In the first amended complaint, Plaintiff names as defendants Sheriff Mims, and the Fresno

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County Sheriff’s Department. Plaintiff names “all departments involved in the allegation including

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but not limited to the following, medical, psychological, therapeutical and/or all relevant and/or

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professional treatment of this petitioner’s related injury and/or injuries.” Plaintiff’s statement of
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claim, in its entirety, follows:

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Fresno medical staff ignored request for urgently required medical
attention as mandated by law. The ignorance of medical attention has
resulted in grave emotional distress leading to psychological and/or
emotional and/or mental effects and/or disturbances etc. This as a
result and/or lack of medical attention shows gross negligence on the
part of Margaret Mims and the Fresno County Sheriff’s Department
and/or all Department supervised by same. In that a simple treatable
knee injury escalated into a grave and/or chronic medical need which
could have been avoided with proper medical care.

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(Am. Compl. ¶ IV.)
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The Court finds that the first amended complaint fails to correct the deficiencies identified
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in the original complaint. Plaintiff fails to identify any individual defendants, and fails to charge any
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identifiable individuals with conduct that constitutes deliberate indifference.

Plaintiff was

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specifically advised that the complaint was vague, and consisted of conclusory allegations. Plaintiff
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was directed to name individual defendants and allege specific facts indicating what each defendant
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did that constitutes deliberate indifference. Plaintiff has failed to comply with the order of October
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4, 2012. Plaintiff fails to name any of the individual defendants identified in the original complaint,
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and fails to provide specific allegations linking any individual to conduct that constitutes deliberate
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indifference. Because Plaintiff has not cured the deficiencies identified in the earlier order, the Court
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dismisses this action for failure to state a federal claim upon which the court could grant relief. See
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Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies

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and opportunity to amend prior to dismissing for failure to state a claim).
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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for failure to state a
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claim upon which relief can be granted. The Clerk is directed to close this case.
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IT IS SO ORDERED.
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Dated:
6i0kij

November 8, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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