Thornton v. Dileo et al

Filing 10

ORDER DISMISSING First Amended Complaint, WITH LEAVE TO AMEND, signed by Magistrate Judge Stanley A. Boone on 5/21/15. 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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SIMON THORNTON,

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Plaintiff,

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v.

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L. DILEO, et al.,

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Defendants.

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Case No.: 1:15-cv-00144-AWI-SAB (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT, WITH LEAVE TO AMEND
[ECF No. 9]

Plaintiff Simon Thornton is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.
Now pending before the Court is Plaintiff‟s first amended complaint, filed May 11, 2015. On
May 11, 2015, Plaintiff‟s original complaint was screened and dismissed with leave to amend.

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I.

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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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, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff‟s claims must be facially plausible, which requires sufficient factual detail to allow

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

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are „merely

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consistent with‟ a defendant‟s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Since 2006, Plaintiff has had chronic nerve damage to his lower back. Plaintiff was receiving

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treatment prior to incarceration for that injury. Upon incarceration treatment was stopped. While

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Plaintiff was housed at Salinas Valley State Prison, he had a traumatic fall due to the discontinuation

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of his treatment and it was determined by a pain management group of doctors at Salinas Valley that

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Morphine 30 mg twice daily combined with a thicker mattress and ground floor housing would be best

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for Plaintiff after physical therapy was not successful. Plaintiff was transferred to Kern Valley State

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Prison before the treatment of Morphine began. Plaintiff spoke with Defendant L. Dileo and showed

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him the medical records and verbally made him aware that without treatment, Plaintiff could sustain

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reoccurring falls due to temporary paralysis that reoccurs when in too much pain. Dileo refused to

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continue Plaintiff‟s treatment. Plaintiff verbally requested a MRI and was denied. Since Dileo
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refused to treat or even look into the matter, Plaintiff now has to suffer in constant pain and problems

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with his legs that hinder his movement and have caused an injury to occur resultin in a permament

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visible scar. Plaintiff further contends that Defendant S. Lopez who supervises Defendant Dileo acted

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with deliberate indifference by failing to intervene once he was made aware of the issues.

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III.

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DISCUSSION

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A.

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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Deliberate Indifference to Serious Medical Need

care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate‟s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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

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“the defendant‟s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner‟s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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As an initial matter, Plaintiff has failed to demonstrate that he has a serious medical condition

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to warrant treatment or that either Defendant acted with the requisite deliberate indifference.

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Although Plaintiff contends that the failure to provide Morphine may lead to further injury of which

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Defendant Dileo, and that he suffers in constant pain, Plaintiff‟s belief that Morphine was necessary to

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prevent further injury, no matter how sincerely held, nor his desire for such treatment provide a basis

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for a constitutional claim for deliberate indifference. Mere disagreement with treatment decisions

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does not give rise to an inadequate medical care claim. Plaintiff‟s assertion that he should undergo an

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MRI is likewise not cognizable because it is a difference in medical opinion. Furthermore, Plaintiff‟s
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claim that he was prescribed Morphine while housed at Salinas Valley State Prison, and failure to

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prescribe such medication upon subsequent transfer to Kern Valley State Prison, does not support a

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claim for deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)

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(difference of opinion between medical professionals concerning the appropriate course of treatment

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generally does not amount to deliberate indifference to serious medical needs). Plaintiff must allege

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facts supporting the conclusion that the treatment chosen was medically unacceptable and in conscious

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disregard of an excessive risk to the prisoner‟s health. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

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Cir. 1981); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff makes no such showing

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here. Plaintiff will be given one additional opportunity to amend. If Plaintiff chooses to do so, he

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must allege facts demonstrating how he suffers from a serious medical need and that Defendants Dileo

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and Lopez knowingly denied medically necessary care for his medical condition or knowingly

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provided care that was medically unacceptable, causing him harm.

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II.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff‟s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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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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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be
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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk‟s Office shall send Plaintiff an amended civil rights complaint form;

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2.

Plaintiff‟s first amended complaint, filed May 7, 2015, is dismissed for failure to state a
claim;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file 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:

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May 21, 2015
UNITED STATES MAGISTRATE JUDGE

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