Spencer v. Reyes et al

Filing 25

ORDER DISMISSING Action for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 3/26/15. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNARD SPENCER,

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Plaintiff,

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v.
REYNALDO REYES, et al.,

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Defendants.

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) 1:13-cv-01944-BAM (PC)
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) ORDER DISMISSING ACTION FOR
) FAILURE TO STATE A CLAIM
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I.

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Plaintiff Bernard Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Screening Requirement and Standard

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to the

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jurisdiction of the Magistrate Judge. (ECF No. 5.)

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On November 18, 2014, the Court dismissed Plaintiff’s first amended complaint with

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leave to amend. (ECF No. 14.) Plaintiff’s second amended complaint, filed on March 23, 2015,

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is currently before the Court for screening. (ECF No. 24.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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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

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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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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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).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at California Men’s Colony, East, in San Luis Obispo,

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California. The events at issue in this action allegedly occurred while Plaintiff was housed at

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North Kern State Prison. Plaintiff names Reynaldo Reyes, R.N., and Tita Jose, R.N., as

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defendants.

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Plaintiff’s second amended complaint is disjointed and filled with legal argument and

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conclusory statements. As best as can be determined, Plaintiff alleges that on May 2, 2013, he

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was suffering pain on the left side of his face and head. Plaintiff was examined by Defendant

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Tita Jose. Plaintiff asked to see a doctor. Defendant Tita Jose then told Plaintiff to shut up, stop

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crying and that there was nothing wrong with him except a few scratches. Plaintiff told

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Defendant Tita Jose that he could not feel the left side of his face and he had chronic

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excruciating pain. Defendant Tita Jose ignored Plaintiff’s request to see a physician. However,

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Plaintiff was given three stiches to his right eye, Tylenol and an ice pack. Plaintiff asserts that
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his face was broken. Plaintiff further alleges that Defendant Reyes was deliberately indifferent

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to Plaintiff’s request to see a physician and for treatment of his injury. Plaintiff believes that

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Defendant Reyes was the supervising nurse on the day of his injuries.

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III.

Discussion

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A. Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

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(citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also

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Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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Plaintiff’s complaint does not contain a short and plain statement of his claim. Although

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brief, Plaintiff fails to include sufficient factual allegations to state a claim for relief that is

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plausible on its face. Plaintiff’s conclusory statements and legal arguments, without more, are

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not sufficient. Despite multiple opportunities, Plaintiff has been unable to cure this deficiency.

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B. Deliberate Indifference

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

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L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show

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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2)

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“the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096;

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and
fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.
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2010). “Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir.2004). The prison official must be aware of facts from which he could

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make an inference that “a substantial risk of serious harm exists” and he must make the

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inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “The indifference to a prisoner's

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medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’

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will not support this claim. Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs.” Lemire v. California Dep’t of Corr.and Rehab., 726 F.3d

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1062, 1081–82 (9th Cir. 2013) (internal citations, punctuation and quotation marks omitted).

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Plaintiff’s allegations do not demonstrate that any defendant acted with the requisite state

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of mind. Plaintiff admits that he received treatment in the form of an ice-pack, pain medication

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and stitches on May 2, 2013. Although Plaintiff complains that Defendants failed to send him to

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a physician, any negligence in treating his condition or any purported “medical malpractice”

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does not state a claim for deliberate indifference to serious medical needs. Lemire, 726 F.3d at

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1081-82; Toguchi, 391 F.3d at 1057-58 (mere negligence in treating a medical condition does

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not violate a prisoner’s Eight Amendment rights). At best, Plaintiff has alleged a disagreement

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with the treatment that he received following his injury, which does not amount to deliberate

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indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); Mayfield v. Craven, 433

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F.2d 873, 874 (9th Cir. 1970) (difference of opinion between a prisoner-patient and prison

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medical authorities as to what treatment is proper and necessary does not give rise to a claim).

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Additionally, Plaintiff omits his prior allegations that the following day he was seen by a

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physician and sent to an outside hospital for surgery. Even if defendants were allegedly

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responsible for a brief delay in treatment by a physician, this does not rise to the level of an

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Eighth Amendment violation. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990)

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(alleged delay of several days in receiving pain medication did not rise to the level of a

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constitutional violation).

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Insofar as Plaintiff attempts to impose liability against Defendant Reyes based solely on

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his role as supervisor, he may not do so. Supervisory personnel may not be held liable under

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section 1983 for the actions of subordinate employees based on respondeat superior or vicarious
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liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire, 726 F.3d at

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1074–75; Lacey v. Maricopa County, 693 F.3d 896, 915–16 (9th Cir. 2012) (en banc). “A

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supervisor may be liable only if (1) he or she is personally involved in the constitutional

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deprivation, or (2) there is a sufficient causal connection between the supervisor's wrongful

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conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation marks

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omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act

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if supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at

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977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)) (internal quotation marks

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omitted).

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Plaintiff has not alleged a sufficient causal connection between Defendant Reyes and the

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constitutional violation, such as implementation of any policy. As discussed above, Plaintiff also

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has not sufficiently alleged personal participation by Defendant Reyes in any constitutional

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violation.

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IV.

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For the above reasons, Plaintiff’s complaint fails state a claim upon which relief may be

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granted. Although Plaintiff was provided multiple opportunities, he has been unable to cure the

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above deficiencies by amendment. Further leave to amend is not warranted. See Lopez v.

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Accordingly, Plaintiff’s complaint is HEREBY

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DISMISSED for failure to state a cognizable claim.

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IT IS SO ORDERED.

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Dated:

Conclusion and Order

/s/ Barbara

March 26, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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