Knapp v. Virk et al

Filing 23

ORDER DISMISSING 19 First Amended Complaint for Failure to State a Claim, WITH LEAVE TO AMEND; Thirty Day Deadline for Plaintiff to File Second Amended Complaint; ORDER for Clerk to Send Plaintiff a Civil Complaint Form signed by Magistrate Judge Gary S. Austin on 3/30/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID KNAPP, 12 Plaintiff, 13 14 vs. VIRK, et al., 15 Defendants. 1:15-cv-00961-GSA-PC SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 19.) THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE SECOND AMENDED COMPLAINT 16 17 ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM 18 19 20 I. BACKGROUND 21 David Knapp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On June 25, 2015, Plaintiff filed the 23 Complaint commencing this action. (ECF No. 1.) 24 On July 6, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action 25 pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 5.) 26 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 27 California, the undersigned shall conduct any and all proceedings in the case until such time as 28 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 1 1 On November 4, 2015, the court dismissed the Complaint for failure to state a claim, 2 with leave to amend. (ECF No. 6.) On August 9, 2016, Plaintiff filed the First Amended 3 Complaint, which is now before the court for screening. (ECF No. 19.) 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 11 paid, the court shall dismiss the case at any time if the court determines that the action or 12 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 III. SUMMARY OF FIRST AMENDED COMPLAINT 14 Plaintiff is presently incarcerated at Valley State Prison (VSP) in Chowchilla, 15 California, where the events at issue in the First Amended Complaint allegedly occurred. 16 Plaintiff names as defendants Pal Singh Virk (Chief Medical Executive (CME)), Dr. Mitchell 17 (CME), K. Phanh (Physician Assistant-C), and Dr. Lyle Griffith (M.D.), (collectively, 18 “Defendants”), who were employed at VSP during the relevant time period. 19 Plaintiff’s allegations follow, in their entirety: 20 The petitioner claims that all defendants listed herein are liable for damages to petitioner for pain and suffering, medical negligence, and mental anguish caused by the deliberate callousness that has been perpetrated towards petitioner at VSP/Valley State Prison in Chowchilla, during his time of serious medical need of medical attention. While at VSP the petitioner has experienced intentional delay and interference [with] treatment and medications, which can only be termed as intentional interference [with] issuance of medical services and dispersing of prescribed pain medications. These considerable delays in medication delivery and treatment as well as misdiagnoses have caused new symptoms for the petitioner, as well as worsened his condition, which caused petitioner to seek a self-help remedy to his suffering on several occasions. This self-help remedy was in the form of several unsuccessful suicide attempts. These considerable delays in treatment, misdiagnosis, and medication delivery were direct results of the callous disregard for petitioner carried out by Dr. P. Virk, Dr. Mitchell, K. Phanh, [and] Dr. Lyle Griffith. 21 22 23 24 25 26 27 28 (ECF No. 19 at 6.) 2 1 2 Plaintiff requests monetary damages and injunctive relief. IV. PLAINTIFF’S CLAIMS 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 5 6 7 8 42 U.S.C. § 1983. 9 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 10 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 11 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 12 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 13 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 14 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 15 a state law amounts to the deprivation of a state-created interest that reaches beyond that 16 guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 17 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 18 color of state law and (2) the defendant deprived him or her of rights secured by the 19 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 20 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 21 “under color of state law”). A person deprives another of a constitutional right, “within the 22 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 23 omits to perform an act which he is legally required to do that causes the deprivation of which 24 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 25 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 26 causal connection may be established when an official sets in motion a ‘series of acts by others 27 which the actor knows or reasonably should know would cause others to inflict’ constitutional 28 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 3 1 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 2 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 3 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 4 A. 5 Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 6 exceptions, none of which apply to § 1983 actions. Swierkeiwicz v. Sorema, N.A., 534 U.S. 7 506, 512 (2002). Under federal notice pleading, a complaint is required to contain “a short and 8 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 9 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements 10 of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 12 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 13 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 14 (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth 15 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 16 face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 17 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere 18 possibility of misconduct falls short of meeting this plausibility standard. Rule 8(a) of the Federal Rules of Civil Procedure 19 The court finds the allegations in Plaintiff’s First Amended Complaint to be vague and 20 conclusory. The First Amended Complaint lumps defendants together and fails to adequately 21 distinguish claims and alleged wrongs among defendants. 22 some degree of particularity overt acts which defendants engaged in that support Plaintiff's 23 claim. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977); also see McHenry v. Renne, 24 84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint must make clear “who is being sued, for what 25 relief, and on what theory, with enough detail to guide discovery”). Plaintiff’s complaint must 26 give each “defendant fair notice of what the plaintiff=s claim is and the grounds upon which it 27 rests.@ Swierkiewicz, 534 U.S. at 512. 28 /// 4 Plaintiff must allege with at least 1 Plaintiff was advised in the court’s prior screening order that in order to state a claim, 2 he must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible 3 on its face,’” (ECF No. 6 at 2:8-9), allegations that link the actions or omissions of each named 4 defendant to a violation of his rights (Id. at 2:14-15), and factual allegations sufficient to raise a 5 right to relief above the speculative level. (Id. at 7:24-25). Plaintiff has not satisfied these 6 requirements in the First Amended Complaint. In fact, Plaintiff’s original Complaint alleged 7 more factual information than the First Amended Complaint. 8 Because Plaintiff has failed to comply with the requirements of Rule 8(a), the First 9 Amended Complaint shall be dismissed. The court will, however, grant leave to file an 10 amended complaint. 11 B. 12 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 13 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 14 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 15 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 16 demonstrating that ‘failure to treat a prisoner=s condition could result in further significant 17 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant=s response to 18 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 19 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 20 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 21 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible 22 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 23 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 24 interfere with medical treatment, or it may be shown by the way in which prison physicians 25 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 26 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 27 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of 28 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). Eighth Amendment Medical Claim 5 1 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 2 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 3 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 4 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 5 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, 6 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 7 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 8 showing of medical malpractice or negligence is insufficient to establish a constitutional 9 deprivation under the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is 10 insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 11 1332, 1334 (9th Cir. 1990)). 12 “A difference of opinion between a prisoner-patient and prison medical authorities 13 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 14 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the 15 course of treatment the doctors chose was medically unacceptable under the circumstances . . . 16 and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 17 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 18 Plaintiff’s allegations of pain and suffering, delays in receiving pain medication, and his 19 attempts to commit suicide due to his suffering are sufficient to demonstrate that he has serious 20 medical needs. 21 any of the Defendants were aware of a substantial risk of serious harm to Plaintiff’s health and 22 deliberately and unreasonably disregarded the risk, causing him harm. 23 conclusory language to allege that all of the Defendants acted with callous disregard, but this is 24 not sufficient to state a claim against any of the individual Defendants. 25 However, Plaintiff has not alleged facts from which the court can infer that Plaintiff uses Therefore, Plaintiff fails to state an Eighth Amendment medical claim in the First 26 Amended Complaint. 27 /// 28 /// 6 1 C. 2 With respect to exhibits, while they are permissible, Fed. R. Civ. P. 10(c), they are not 3 necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). Plaintiff is advised that 4 it is not the duty of the court to look through all of his exhibits to determine whether or not he 5 has claims cognizable under § 1983.1 6 contained in Plaintiff=s complaint to determine whether or not Plaintiff has stated a cognizable 7 claim for relief under § 1983. In fact, the court strongly recommends that exhibits should not 8 be submitted where (1) they serve only to confuse the record and burden the court, or (2) they 9 are intended as future evidence. If this action reaches a juncture at which the submission of 10 evidence is appropriate and necessary (e.g., summary judgment or trial), Plaintiff will have the 11 opportunity at that time to submit his evidence. Exhibits Rather, the court looks to the factual allegations 12 D. 13 Plaintiff also seeks to bring a claim for medical negligence, which is a state tort. 14 Violation of state tort law is not sufficient to state a claim for relief under § 1983. To state a 15 claim under § 1983, there must be a deprivation of federal constitutional or statutory rights. 16 See Paul v. Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental 17 jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under 18 federal law. See 28 U.S.C. § 1367. In this instance, the court fails to find any cognizable 19 federal claims in the First Amended Complaint. Therefore, Plaintiff=s negligence claim fails. Negligence Damages for Emotional Distress – Physical Injury Requirement 20 E. 21 Plaintiff is advised that the Prison Litigation Reform Act provides that A[n]o Federal 22 civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, 23 for mental and emotional injury suffered while in custody without a prior showing of physical 24 injury.@ 42 U.S.C. § 1997e(e). The physical injury Aneed not be significant but must be more 25 than de minimis.@ Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ) (back and leg pain and 26 27 1 28 [Plaintiff] may not place the Court in the position of “‘fish[ing] a gold coin from a bucket of mud.’” Knapp v. Hogan, 738 F.3d 1106, 1111 (9th Cir. 2013) (quoting U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003)). 7 1 canker sore de minimis); see also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2 2008) (bladder infections and bed sores, which pose significant pain and health risks to 3 paraplegics such as the plaintiff, were not de minimis). The physical injury requirement applies 4 only to claims for mental or emotional injuries and does not bar claims for compensatory, 5 nominal, or punitive damages. Id. at 630. Therefore, Plaintiff is not entitled to monetary 6 damages in this case for emotional distress unless he also shows a physical injury. 7 V. CONCLUSION AND ORDER 8 The court finds that Plaintiff’s First Amended Complaint fails to state any claim upon 9 which relief may be granted. The court will dismiss the First Amended Complaint and give 10 Plaintiff leave to file a Second Amended Complaint addressing the issues described above. 11 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 12 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 13 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 14 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the Second 15 Amended Complaint within thirty days. 16 The Second Amended Complaint must allege facts showing what each named defendant 17 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 18 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 19 demonstrate that each defendant personally participated in the deprivation of his rights by their 20 actions. Id. at 676-77 (emphasis added). Plaintiff must 21 Plaintiff should note that although he has been given the opportunity to amend, it is not 22 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 23 507 F.3d 605, 607 (no “buckshot” complaints). 24 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 25 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 26 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 27 amended complaint, as in an original complaint, each claim and the involvement of each 28 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 8 1 titled “Second Amended Complaint,” refer to the appropriate case number, and be an original 2 signed under penalty of perjury. 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. 5 Plaintiff’s First Amended Complaint is dismissed for failure to state a claim, with leave to amend; 6 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 7 3. Plaintiff is granted leave to file a Second Amended Complaint curing the 8 deficiencies identified by the court in this order, within thirty (30) days from 9 the date of service of this order; 10 4. 11 12 Plaintiff shall caption the amended complaint “Second Amended Complaint” and refer to the case number 1:15-cv-00961-GSA-PC; and 5. 13 If Plaintiff fails to file a Second Amended Complaint within thirty days, this case shall be dismissed for failure to state a claim. 14 15 16 17 IT IS SO ORDERED. Dated: March 30, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 9

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