Lopez v. Yates et al

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, for Failure to State a Claim signed by Magistrate Judge Michael J. Seng on 02/20/2014. Amended Complaint due by 3/27/2014. (Attachments: # 1 Amended Complaint)(Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 JOHNNY LOPEZ, 12 Plaintiff, 13 v. 14 JAMES A. YATES, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-2005-MJS ORDER DISMISSING PLAINTIFF‟S COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM ECF No. 1 AMENDED COMPLAINT DUE WITHIN THIRTY DAYS 19 On October 18, 2013, Johnny Lopez (“Plaintiff”), an individual proceeding pro se and 20 21 22 in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 6.) Plaintiff‟s Complaint is now before the Court for screening. No other parties have 23 24 25 appeared in the action. I. SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against 26 a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 27 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that 28 are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, 1 1 or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 2 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 3 4 appeal . . . fails to state a claim upon which relief may be granted.” 1915(e)(2)(B)(ii). 5 6 7 8 28 U.S.C. § A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 10 factual matter, accepted as true, to „state a claim that is plausible on its face.‟” Iqbal, 556 11 12 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are 13 accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 14 II. 15 PLAINTIFF’S CLAIMS Plaintiff is incarcerated at R.J. Donovan Correctional Facility. The events at issue in 16 his Complaint occurred in Pleasant Valley State Prison (“PVSP”). 17 Defendants violated Plaintiff‟s rights under the Eighth Amendment by providing him with 18 inadequate medical care. Plaintiff names the following individuals as defendants: 1) James 19 A. Yates, warden, and 2) Inwumi Ola, medical doctor. 20 More specifically, Plaintiff‟s alleges as follows: 21 Plaintiff is in his late sixties and has a number of medical problems. On March 14, 22 2012, Plaintiff asked Defendant Ola for a walker with a seat because he became dizzy after 23 walking several steps. 24 prescribed orthopedic shoes for Plaintiff. 25 26 Plaintiff alleges that Defendant Ola refused to fulfill Plaintiff‟s request and instead Plaintiff asked for a walker again on March 27, 2012, but the request was again denied. 27 28 2 1 Plaintiff fell on April 13, 2012, injuring his head, nose and right eye. Plaintiff was taken to a hospital by helicopter. Plaintiff‟s medical conditions worsened. Plaintiff was provided 2 with a medical walker with a seat in the fall of 2012. 3 Defendant Yates should have reviewed prison policies to ensure that inmates 4 5 received adequate medical care. Defendant Ola acted with deliberate indifference by not providing Plaintiff with a walker when Plaintiff asked for one. 6 7 8 Plaintiff asks for declaratory and injunctive relief, $25,000 in compensatory damages from each Defendant, and $30,000 in punitive damages from each Defendant. III. 9 ANALYSIS A. 42 U.S.C. § 1983 Claims 10 42 U.S.C. § 1983 “provides a cause of action for the „deprivation of any rights, 11 privileges, or immunities secured by the Constitution and laws‟ of the United States.” Wilder 12 v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). § 1983 is not 13 itself a source of substantive rights, but merely provides a method for vindicating federal 14 rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 15 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 16 right secured by the Constitution or laws of the United States was violated, and (2) that the 17 alleged violation was committed by a person acting under the color of state law. See West v. 18 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 19 1987). 20 B. 21 Plaintiff alleges that Defendant Yates should be held liable for the inadequate medical 22 care he received. As warden of the prison, Defendant Yates should have reviewed prison 23 policies and ensured that inmates received proper medical treatment. Supervisory Liability 24 Under section 1983, Plaintiff must link the named Defendants to the participation in 25 the violation at issue. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 26 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 27 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be imposed on 28 supervisory personnel under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77; 3 1 2 Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934, and as an administrator, Defendant Yates may only be held liable if he “participated in or directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 3 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), 4 5 6 7 8 9 10 11 12 cert. denied, 132 S.Ct. 2101 (2012); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or inaction must be attributable to Defendant and while the creation or enforcement of, or acquiescence in, an unconstitutional policy, as alleged here, may support a claim, the policy must have been the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Plaintiff attributes no action or inaction to Defendant Yates other than an alleged 13 failure to have reviewed and improved prison procedures to ensure that inmates received 14 proper medical care. Plaintiff does not identify any specific prison policy that caused or led to 15 the Eighth Amendment violation alleged here. Thus, it appears that in truth Plaintiff has 16 named Yates as a Defendant simply because of his overall supervisorial responsibilities as 17 warden. For the reasons stated above, that is not a valid basis for a cognizable claim. 18 C. 19 Plaintiff alleges that Defendant Ola subjected him to inadequate medical care in 20 violation of the Eighth Amendment by not providing him with a walker when Plaintiff 21 requested one. Eighth Amendment – Inadequate Medical Care 22 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 23 inmate must show „deliberate indifference to serious medical needs.‟” Jett v. Penner, 439 24 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The 25 two part test for deliberate indifference requires Plaintiff to show (1) “„a serious medical need‟ 26 by demonstrating that „failure to treat a prisoner‟s condition could result in further significant 27 injury or the unnecessary and wanton infliction of pain,‟” and (2) “the defendant‟s response to 28 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 4 1 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). 2 In addition to a serious medical condition, Plaintiff must also establish deliberate 3 4 5 6 7 8 9 10 11 12 indifference. To show deliberate indifference, Plaintiff must show “a purposeful act or failure to respond to a prisoner‟s pain or possible medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only „be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,‟ but that person „must also draw the inference.‟” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “„If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.‟” Id. (quoting Gibson, 290 F.3d at 1188). Plaintiff has failed to make allegations sufficient to fulfill either element required for a 13 cognizable Eighth Amendment inadequate medical care claim. Plaintiff will be given leave to 14 amend this claim. 15 Plaintiff fails to explain why his “multiple medical problems” rise to the level of a 16 serious medical condition. It is conceivable, but not clear, that his dizziness was such as to 17 render him incapable of safely walking more than a few steps. But as pled, he alleges only 18 that he had some dizziness after walking several steps. He does not allege, for example, 19 that he had a history of falling from dizziness or anything else to support a conclusion that his 20 dizziness was indeed a serious condition. If Plaintiff chooses to amend, he should include 21 additional information about his ailments and why they would lead to further significant injury 22 or the infliction of additional pain if not properly treated. 23 Plaintiff also fails to explain how Defendant Ola was deliberately indifferent to his 24 medical condition. Plaintiff‟s belief that he should have been provided with a walker instead 25 of orthodontic shoes reflects merely a disagreement with Defendant‟s choice of treatment. 26 “A difference of opinion between a physician and the prisoner-or between medical 27 professionals-concerning what medical care is appropriate does not amount to deliberate 28 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 5 1 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1986)). Rather, Plaintiff “must 2 show that the course of treatment the doctors chose was medically unacceptable under the 3 circumstances and that the defendants chose this course in conscious disregard of an 4 5 6 7 8 9 10 11 12 excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). In his amended complaint, Plaintiff should explain why a medical walker was necessary and why Defendant Ola‟s decision to provide other treatment was medically unacceptable and reflected deliberate indifference on the part of Defendant Ola. D. Declaratory Relief In addition to damages, Plaintiff seeks declaratory relief, but because his claims for damages necessarily entail a determination whether his rights were violated, his separate request for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 13 559, 565-66 n.8 (9th Cir. 2005) (quotation marks omitted). Therefore, this action properly 14 proceeds as one for damages only. 15 E. 16 Plaintiff also seeks injunctive relief. He requests an injunction ordering Defendants to 17 Injunctive Relief provide him with proper health required as required by law. 18 Injunctive relief is an “extraordinary remedy, never awarded as of right.” Winter v. 19 Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary 20 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 21 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 22 favor, and that an injunction is in the public interest.” Id. (citing Munaf v. Geren, 553 U.S. 23 674, 689–90 (2008)). 24 25 Plaintiff has failed to show that he is likely to succeed on the merits since at this stage of the proceedings he has failed to state a cognizable claim. 26 In cases brought by prisoners involving conditions of confinement, the Prison 27 Litigation Reform Act (“PLRA”) requires that any preliminary injunction “be narrowly drawn, 28 6 1 extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a). 2 Plaintiff fails to suggest a real and immediate threat of injury. See City of Los Angeles 3 4 5 6 v. Lyons, 461 U.S. 95, 101–102 (1983) (plaintiff must show “real and immediate” threat of injury, and “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present, adverse effects.”). Plaintiff has failed to satisfy this element. 7 8 9 10 11 Plaintiff does not address the third or fourth elements, i.e., the balancing of equities and public interest concerns. First, absent a showing sufficient to find harm to Plaintiff, there is nothing to tip the balance of equities in Plaintiff's favor. Second, while the public has an interest in providing the best practical prisoner care, the record before the Court does not justify the Court substituting its judgment in these matters for that of the prison medical staff. 12 The various criteria not having been met, Plaintiff is not entitled to injunctive relief. 13 The Court will allow leave to amend. 14 sufficient facts satisfying the above elements. 15 IV. If Plaintiff chooses to amend, he must set forth CONCLUSION AND ORDER 16 Plaintiff‟s Complaint fails to state a claim upon which relief may be granted under § 17 1983. The Court will provide Plaintiff with an opportunity to amend to cure the deficiencies in 18 his claim. Lopez v. Smith, 203 F.3d at 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 19 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, 20 unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 21 2007) (no “buckshot” complaints). 22 Plaintiff‟s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state 23 what each named defendant did that led to the deprivation of Plaintiff=s constitutional rights, 24 Iqbal, 556 U.S. 676-677. 25 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 26 555 (citations omitted). Although accepted as true, the “[f]actual allegations must be 27 Finally, an amended complaint supersedes the prior complaint, Forsyth v. Humana, 28 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), 7 1 and it must be “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. 2 Accordingly, it is HEREBY ORDERED that: 3 1. 4 5 6 7 8 9 The Clerk‟s Office shall send Plaintiff a complaint form; 2. Plaintiff‟s Complaint, filed October 18, 2013, is dismissed for failure to state a claim upon which relief may be granted under § 1983; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 4. 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. 10 11 IT IS SO ORDERED. 12 13 Dated: 16 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 14 15 February 20, 2014 DEAC _Signature- END: ci4d6 17 18 19 20 21 22 23 24 25 26 27 28 8

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