Sim v. Duran et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Stanley A. Boone on 12/19/2016. First Amended Complaint due by 1/23/2017. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HWA SUNG SIM,
Plaintiff,
v.

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MONICA DURAN, et al.,

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Defendants.

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Case No.: 1:16-cv-01051-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff Hwa Sung Sim is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to United States Magistrate Judge jurisdiction

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pursuant to 28 U.S.C. § 636(c). (ECF No. 5.)

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Currently before the Court is Plaintiff’s complaint, filed July 21, 2016.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen Plaintiff’s first amended complaint and dismiss the case, in

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whole or in part, if the Court determines it fails to state a claim upon which relief may be granted. 28

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U.S.C. § 1915(e)(2)(B)(ii). A complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not 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 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Walmart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal

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quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler,

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627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s claims must be facially plausible to survive

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screening, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is

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not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names correctional officers Duran, Masi, S. Hanzel, B. Chambers, J. Silva, J. Stegall,

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Arellano, Ayala, correctional sergeants Garza and Venegas, correctional lieutenant Figueroa,

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Registered Nurse De La Cruz, Doctor Johal, CCPOA Representative J. Bridges, and John Doe, as

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Defendants.

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On August 31, 2014, correctional officer M. Duran shot Plaintiff on the top left side of his head

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with a rubber bullet in the chow hall. There was a fight involving Hispanic inmates and Plaintiff was

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not involved in the fight. Plaintiff was approximately twenty feet away and seated on the ground

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when he shot. Plaintiff suffered a concussion, internal bleeding of a brain, and required six staples.

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Plaintiff was taken to the medical facility and was released hours later without a CAT scan or a

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mandatory 24-hour evaluation. Plaintiff was returned to Wasco State Prison and back to his cell with

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a couple Ibuprofens. The next morning, Plaintiff woke up with a large amount of blood and vomit on

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his bed. Plaintiff was admitted to the hospital for a CAT scan and MRI on September 1, 2014. After

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being released from the hospital, Plaintiff received no medical treatment from the medical staff at

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Wasco State Prison for ten days. During the ten days, Plaintiff turned in several medical forms and
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asked several officers for evaluation by a doctor. When Plaintiff finally went to medical, he

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complained of dizziness, nausea and vomiting. The doctor told Plaintiff he was lying and making a

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big deal. He was taunted, teased and harassed by officers.

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On October 5, 2014, Plaintiff had a seizure in the dayroom of his building. Plaintiff was
admitted to the hospital.
In March 2015, Plaintiff blacked out in the central kitchen, and was again admitted to the

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hospital. Plaintiff had no history of seizures or black-outs prior to the incident. After the incident,

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Plaintiff has tried several medications which have not helped.

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Plaintiff contends that officer Duran is responsible for Plaintiff’s pain and suffering, other

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officers are liable for covering up, lying and harassing plaintiff, and the supervisors are responsible for

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their lack of training. All doctors, nurses and supervisors at Wasco State Prison should be held

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accountable for not providing Plaintiff proper medical attention. Kern Medical Doctor and supervisor

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need to be held accountable for releasing Plaintiff back to prison without a 24-hour observation, CAT

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scan, and MRI after his serious head trauma.

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Plaintiff requests financial compensation for his pain and suffering.

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III.

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DISCUSSION

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A.

Linkage Under Section 1983

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada

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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Plaintiff names several Defendants but fails to link them to any affirmative act or omission
giving rise to the alleged constitutional violations.

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B.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective

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component of an Eighth Amendment claim is contextual and responsive to contemporary standards of

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decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses

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of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is evident,

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Wilkins, 559 U.S. at 37-38 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002).

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Factors that can be considered are “the need for the application of force, the relationship

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between the need and the amount of force that was used, [and] the extent of injury inflicted.” Whitley

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v. Albers, 475 U.S. 312, 321 (1986). Although the extent of the injury is relevant, the inmate does not

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need to sustain serious injury. Hudson, 503 U.S. at 7; Wilkins, 559 U.S. at 37-38. The Eighth

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Amendment’s prohibition on cruel and unusual punishments necessarily excludes from constitutional

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recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10.

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Although Plaintiff claims that he was shot and injured by a rubber bullet during a fight

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involving Hispanic inmates (not Plaintiff) in the chow hall, Plaintiff fails to set forth sufficient factual

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detail surrounding the use of the force. Plaintiff states only that he was approximately twenty feet

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away from the fight and was seated on the ground when he was shot. Plaintiff does not provide what

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if any reasons were given by Duran for her actions, whether Defendant Duran engaged in other

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conduct to defuse the use of force, or why Plaintiff believes the use of force was excessive given the

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ongoing riot. While Plaintiff may be able to state a cognizable claim for excessive force, the facts as
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alleged fail to give rise to a plausible inference that the actions of officer Duran were malicious and

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sadistic for the purpose of causing harm to Plaintiff. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1528

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(9th Cir. 1993) (“Whether in the context of a prison-wide disturbance or an individual confrontation

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between an officer and a prisoner, corrections officers often must act immediately and emphatically to

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defuse a potentially explosive situation.”). Accordingly, Plaintiff will be given leave to amend this

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claim.

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C.

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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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“A difference of opinion between a physician and the prisoner - or between medical

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professionals - concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir.

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2014); Wilhelm v. Rotman, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1986)). Rather, Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances and that the defendants chose this course in conscious disregard

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of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal

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quotation marks omitted).

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Plaintiff’s allegations fail to give rise to a cognizable claim for deliberate indifference.

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Plaintiff’s allegation that he was not provided a CAT scan, MRI, or 24-hour evaluation, fail to give

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rise to a cognizable claim for deliberate indifference, as such allegations merely demonstrate a

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disagreement with his medical treatment. Simply not receiving a certain test or maintained at a facility

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for a certain period of time does not state a constitutional claim against medical staff members.

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Plaintiff has not alleged any Defendant knew he needed an MRI or CAT scan, yet intentionally failed

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to do so with the knowledge that it would cause Plaintiff serious medical harm. Plaintiff also fails to

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link any individual Defendant to the specific role in which he/she played in Plaintiff’s treatment or

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lack thereof. Indeed, Plaintiff admits that he was provided numerous medications but all failed to help

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him. While Plaintiff’s claim that a “doctor” told him he was lying and making a big deal of his

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symptoms may give rise to a cognizable claim, Plaintiff must name the “doctor” if known, identify the

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individual as a “Doe” defendant, or provide the doctor’s title and place of employment. Accordingly,

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Plaintiff fails to state a cognizable Eighth Amendment claim and leave to amend will be granted.

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D.

Supervisory Liability

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Supervisory personnel may not be held liable under section 1983 for the actions of subordinate

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employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967,

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977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75

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(9th Cir. 2013); 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 deprivation,

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or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal quotation

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marks 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 if

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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 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
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Plaintiff’s claim that certain supervisory individuals failed to train and/or supervise fails to

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give rise to a cognizable claim for relief. A “failure to train” or “failure to supervise” theory can be

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the basis for a supervisor’s liability under § 1983 in only limited circumstances, such as where the

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failure amounts to deliberate indifference. See City of Canton, Ohio v. Harris, 489 U.S. 378, 387-90

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(1989) (A failure to train or supervise may satisfy this criteria if, “in light of the duties assigned to

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specific officers or employees[,] the need for more or different training is so obvious, and the

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inadequacy so likely to result in the violation of the constitutional rights, that the policymakers of the

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city can reasonably be said to have been deliberately indifferent to the need.”) However, “[t]he cases

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in which supervisors have been held liable under a failure to train/supervise theory involve conscious

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choices made with full knowledge that a problem existed.” Wardell v. Nollette, No C05-0741RSL,

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2006 WL 1075220, at *3 (W.D. Wash. Apr. 20, 2006) (collecting cases); see also Cousin v. Small,

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325 F.3d 627, 637 (5th Cir. 2003) (to impose liability for supervisor’s failure to train, “a plaintiff must

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usually demonstrate a pattern of violations and that the inadequacy of the training is obvious and

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obviously likely to result in a constitutional violation.”). Also, the identified training deficiency must

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be casually connected to the ultimate injury. City of Canton, 489 U.S. at 391. Plaintiff’s claim for

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supervisory liability is devoid of factual support and fails to give rise to a constitutional violation.

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IV.

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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.
Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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Plaintiff’s complaint, filed July 21, 2016, is dismissed for failure to state a claim;

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3.

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 for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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December 19, 2016
UNITED STATES MAGISTRATE JUDGE

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