Jones v. Corizon Health et al

Filing 8

ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 5/22/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LaTONIA JONES. 10 11 Plaintiff, Case No. 1:16-cv-01055-SKO (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 12 CORIZON HEALTH, et al., THIRTY (30) DAY DEADLINE 13 Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, LaTonia Jones, is a county jail inmate, proceeding pro se and in forma pauperis 18 in this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state 19 a cognizable claim upon which relief may be granted as she fails to link her allegations to any 20 individual defendant. Thus, the Complaint is DISMISSED with leave to amend. 21 B. 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 24 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 26 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 27 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 28 Screening Requirement and Standard 1 1 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 2 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 4 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 5 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 6 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 7 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 8 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 9 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 10 11 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 12 when a pleading says too little -- the baseline threshold of factual and legal allegations required 13 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 14 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 15 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 16 have never held -- and we know of no authority supporting the proposition -- that a pleading may 17 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 18 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 19 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 20 impose unfair burdens on litigants and judges”). 21 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 22 cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678, 23 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 24 Asufficient factual matter, accepted as true, to >state a claim that is plausible on its face.=@ Iqbal, 25 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 26 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 27 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 28 2 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 1 2 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 3 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 4 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 5 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 6 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 7 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 8 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 9 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 10 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 11 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 12 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 13 14 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 15 when the opportunity to correct the pleadings has been afforded and there has been no 16 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 17 2013). 18 19 2. Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief as an 20 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 21 alternate claims, as many claims as the party has against an opposing party. However, Plaintiff 22 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 23 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 24 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the 25 claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences, 26 and (2) there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 27 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 28 3 1 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) 2 will the Court review the additional claims to determine if they may be joined under Rule 18(a), 3 which permits the joinder of multiple claims against the same party. 4 The Court must be able to discern a relationship between Plaintiff’s claims or there must 5 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 6 constitutional violation (i.e. retaliation by different actors on different dates, under different 7 factual events) does not necessarily make the claims related for purposes of Rule 18(a). All 8 claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is 9 cautioned that if she fails to elect which category of claims to pursue and her amended complaint 10 sets forth improperly joined claims, the Court will determine which claims should proceed and 11 which claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 12 2013). Whether any claims will be subject to severance by future order will depend on the 13 viability of claims pled in the amended complaint. 14 15 3. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 16 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 17 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 18 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 19 substantive rights, but merely provides a method for vindicating federal rights elsewhere 20 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 21 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 22 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 23 or causal connection, between each individual defendant’s actions or omissions and a violation of 24 his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th 25 Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 26 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 27 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 28 4 1 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 2 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 3 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 4 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 5 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 6 Plaintiff names Corizon Health (“Corizon”) Care Staff and Fresno County Jail (“FCJ”) 7 Administration Staff as the only defendants in this action. However, these entities are not 8 individual state actors under § 1983. Thus, Plaintiff must name the individuals at Corizon whom 9 she believes are responsible for violating her civil rights for the alleged lack of treatment for her 10 infection and the conditions at the FCJ which she believes caused her to contract the infection. 11 These individuals must also be specifically linked to Plaintiff’s factual allegations. DISCUSSION 12 Plaintiff’s Allegations 13 A. 14 Plaintiff is currently incarcerated at the FCJ. Plaintiff alleges that the conditions at the 15 FCJ caused her to contract an infection which resulted in a bumpy, itchy skin rash. Plaintiff has 16 been seen by various Corizon staff members who ordered blood tests which indicated she has an 17 infection. Although Corizon staff indicated they are going to refer Plaintiff to a specialist because 18 they do not know how to treat her infection, Plaintiff has never received any treatment -- even 19 ointment to help with the itch from the rash, let alone referral to a specialist. 20 Plaintiff’s allegations are not cognizable as she has not sufficiently linked them to any 21 individual state actors so as to be able to proceed under § 1983. Thus, she is given the pleading 22 requirements and legal standards for her stated claims and opportunity to file a first amended 23 complaint. 24 25 26 27 28 B. Legal Standards 1. Deliberate Indifference a. Conditions of Confinement The Eighth Amendment protects prisoners from inhumane methods of punishment and 5 1 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 2 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 3 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 4 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 5 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 6 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 7 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 8 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). 9 The deliberate indifference standard involves both an objective and a subjective prong. 10 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 11 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 12 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 13 For screening purposes, Plaintiff’s rash and infection are sufficiently serious to meet the 14 objective prong. However, Plaintiff’s allegations fail to meet the subjective prong. Specifically, 15 Plaintiff fails to show that any FCJ employees knew she was exposed to mold and rust which 16 caused her to contract an infection. b. 17 Serious Medical Needs 18 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 19 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 20 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 21 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 22 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 23 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 24 Cir.1997) (en banc)) 25 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 26 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 27 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 28 6 1 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 2 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 3 (quotation marks omitted)). As to the first prong, indications of a serious medical need “include the existence of an 4 5 injury that a reasonable doctor or patient would find important and worthy of comment or 6 treatment; the presence of a medical condition that significantly affects an individual’s daily 7 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 8 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 9 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 10 blood infection, which resulted in an itchy, bumpy skin rash is accepted as a serious medical 11 need. 12 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 13 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 14 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 15 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 16 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 17 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 18 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 19 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 20 substantial; however, such would provide additional support for the inmate's claim that the 21 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 22 F.2d at 1060. 23 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 24 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 25 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 26 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison 27 official should have been aware of the risk, but was not, then the official has not violated the 28 7 1 Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, 2 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 3 4 5 6 As discussed above, Plaintiff’s allegations are not cognizable as she fails to link any individual to her inability to obtain treatment for her infection and rash. 2. Supervisory Liability It is insufficient for Plaintiff to name the Fresno County Sheriff in place of FCJ or the 7 Medical Director instead of Corizon simply based on their supervisory position. Generally, 8 supervisory personnel are not liable under section 1983 for the actions of their employees under a 9 theory of respondeat superior -- when a named defendant holds a supervisory position, the 10 causal link between him and the claimed constitutional violation must be specifically alleged. See 11 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 12 Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under this theory, 13 Plaintiff must allege some facts that would support a claim that supervisory defendants either 14 personally participated in the alleged deprivation of constitutional rights; knew of the violations 15 and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the 16 policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional 17 violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); 18 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 To establish this, “a plaintiff must show the supervisor breached a duty to plaintiff which 20 was the proximate cause of the injury. The law clearly allows actions against supervisors under 21 section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived 22 under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 23 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v. 24 Brennan, 511 U.S. 825 (1994). 25 “The requisite causal connection can be established . . . by setting in motion a series of 26 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 27 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 28 8 1 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 2 of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual 3 capacity for his own culpable action or inaction in the training, supervision, or control of his 4 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 5 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 6 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted). 7 Plaintiff's allegations could be construed to allege that by reviewing Plaintiff's IAs on this 8 issue, supervisory personnel knew that she was being exposed to mold and rust which caused her 9 to contract an infection, resulting in a skin rash. It is true that "inmates lack a separate 10 constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 11 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a 12 specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A[A 13 prison] grievance procedure is a procedural right only, it does not confer any substantive right 14 upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. 15 Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th 16 Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner). However, a 17 plaintiff may "state a claim against a supervisor for deliberate indifference based upon the 18 supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her 19 subordinates," Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the inmate 20 appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and failed to 21 take corrective action, thereby allowing the violation to continue. 22 23 24 25 To be liable in a supervisorial capacity, Plaintiff must first state cognizable claims against Warden Holland’s subordinates, which as discussed above, Plaintiff has not done. 3. Inmate Appeals Plaintiff may believe various individuals are liable based on their involvement in the 26 processing, and reviewing of her inmate appeals related to her exposure to the conditions which 27 she contends caused her to contract an infection as well as the delay of treatment for her medical 28 9 1 2 condition. The Due Process Clause protects prisoners from being deprived of liberty without due 3 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 4 for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for 5 which the protection is sought. AStates may under certain circumstances create liberty interests 6 which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 7 Liberty interests created by state law are generally limited to freedom from restraint which 8 Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 9 prison life.@ Sandin, 515 U.S. at 484. 10 A[A prison] grievance procedure is a procedural right only, it does not confer any 11 substantive right upon the inmates.@ Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing 12 Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 13 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a 14 specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of 15 grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 16 (9th Cir. 1988). AHence, it does not give rise to a protected liberty interest requiring the 17 procedural protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. 18 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 19 Actions in reviewing prisoner=s administrative appeal cannot serve as the basis for liability 20 in a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a 21 violation of the Constitution, and fails to cure it, has violated the Constitution himself is not 22 correct. AOnly persons who cause or participate in the violations are responsible. Ruling against 23 a prisoner on an administrative complaint does not cause or contribute to the violation. A guard 24 who stands and watches while another guard beats a prisoner violates the Constitution; a guard 25 who rejects an administrative complaint about a completed act of misconduct does not.@ George 26 v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645, 656-57 (7th 27 Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 28 10 1 992-93 (7th Cir.1996). 2 Thus, since she has neither a liberty interest, nor a substantive right in inmate appeals, 3 Plaintiff is unable to prove the elements of a constitutional violation purely for the processing 4 and/or reviewing of inmate appeals. Plaintiff, however, may be able to prove the elements for a 5 claim under the Eight Amendment for deliberate indifference to her serious medical needs against 6 those medical personnel who were involved in reviewing her inmate appeals if they had both 7 medical training and the authority to intercede and/or to take corrective action. If Plaintiff meets 8 this burden of proof as to the elements of a claim against a defendant for deliberate indifference to 9 her serious medical needs, she will likely also be able to meet her burden as to the elements of a 10 claim against defendants with medical training if Defendants reviewed and ruled against Plaintiff 11 in her medical grievances/appeals on that same issue. Further, at least one Appellate Circuit has held that A[o]nce a [non-medical] prison 12 13 grievance examiner becomes aware of potential mistreatment, the Eight Amendment does not 14 require him or her to do more than >review [the prisoner=s] complaints and verif[y] with the 15 medical officials that [the prisoner] was receiving treatment.@ Greeno, 414 F.3d at 656 citing 16 Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) (non-physician defendants cannot Abe 17 considered deliberately indifferent simply because they failed to respond directly to the medical 18 complaints of a prisoner who was already being treated by the prison doctor@ and if Aa prisoner is 19 under the care of medical experts . . . a non-medical prison official will generally be justified in 20 believing that the prisoner is in capable hands.@) This Court concurs with the analysis in Greeno 21 and Spruill. Thus, non-medical prison personnel, and lower medical staff such as nurses and/or 22 medical technicians, cannot be held liable for their involvement in processing and/or ruling on 23 inmate appeals for medical issues where the inmate is under the care of a physician for the issues 24 raised. 25 // 26 // 27 // 28 11 ORDER 1 For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first 2 3 amended complaint within thirty (30) days. If Plaintiff needs an extension of time to comply 4 with this order, Plaintiff shall file a motion seeking an extension of time no later than thirty (30) 5 days from the date of service of this order. 6 Plaintiff must demonstrate in any first amended complaint how the conditions complained 7 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 8 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 9 defendant is involved. There can be no liability under section 1983 unless there is some 10 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 11 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 12 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 14 plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 15 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 16 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 17 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 18 (2007) (citations omitted). Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 19 20 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 21 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 22 pleading," Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 23 24 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 25 may not change the nature of this suit by adding new, unrelated claims in his first amended 26 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 27 // 28 12 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. Plaintiff's Complaint is dismissed, with leave to amend; 3 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 4 3. Within thirty (30) days from the date of service of this order, Plaintiff must file a 5 first amended complaint curing the deficiencies identified by the Court in this 6 order or a notice of voluntary dismissal; and 4. 7 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order. 8 9 10 11 12 IT IS SO ORDERED. Dated: May 22, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sheila K. Oberto 13 .

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