Contreras v. Kernan

Filing 10

ORDER DISMISSING CASE WITH LEAVE TO AMEND,signed by Magistrate Judge Sheila K. Oberto on 06/1/2017. Amended Complaint due : 30-Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RUBEN CONTRERAS, 10 Case No. 1:16-cv-01111-SKO (PC) Plaintiff, 11 v. 12 ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND KERNAN, et al., (Doc. 1) THIRTY-DAY DEADLINE 13 Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, Ruben Contreras, is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a 19 cognizable claim upon which relief may be granted. The First Amended Complaint is 20 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 “[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 23 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 24 “sufficient 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 “plaintiffs [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,” 5 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 6 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 7 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 8 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 9 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 10 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 11 and “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 If he chooses to file a second amended complaint, Plaintiff should make it as concise as 19 possible and simply state which of his constitutional rights he believes were violated by each 20 Defendant and the factual basis. Plaintiff need not and should not cite legal authority for his 21 claims as his factual allegations are accepted as true. 22 23 2. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 24 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 25 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 26 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 27 substantive rights, but merely provides a method for vindicating federal rights elsewhere 28 3 1 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 2 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 3 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 4 or causal connection, between each defendant’s actions or omissions and a violation of his federal 5 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 6 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 7 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 8 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 9 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 10 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 11 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 12 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 13 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 14 DISCUSSION Plaintiff’s Allegations 15 A. 16 Plaintiff is currently incarcerated at California State Prison, Solano (“CSP-Sol”), but his 17 allegations are based on circumstances that allegedly occurred while he was housed at Pleasant 18 Valley State Prison (“PVSP”). Plaintiff names Secretary Scott Kernan, Dr. Adinwumi Ola, and 19 “Does A-Z” as the defendants in this action and seeks monetary damages. 20 Plaintiff alleges that when he was housed at PVSP, he contracted Valley Fever. Plaintiff 21 alleges that Sect. Kernan was aware of the threat Valley Fever posed to Plaintiff’s health and 22 should not have housed him at PVSP. Plaintiff alleges that when he began to have symptoms, he 23 presented to Dr. Ola who misdiagnosed him has having a cold, gave him medication, and sent 24 him away. When Plaintiff again presented to Dr. Ola and demanded a test to see if he had Valley 25 Fever, Dr. Ola and other medical staff misinterpreted the test results and wrongly diagnosed 26 Plaintiff with bronchitis. A month later, Plaintiff was disoriented on the prison yard and was 27 rushed for emergency surgery at an outside hospital where a permanent shunt was placed in his 28 4 1 2 3 4 brain. As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he is provided the applicable legal standards and an opportunity to file an amended complaint. B. 1. 5 Eighth Amendment a. 6 7 Legal Standards Conditions of Confinement Plaintiff’s allegations against Sect. Kernan are based solely on his placement at PVSP. 8 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 9 inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 10 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 11 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 12 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 13 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 14 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 15 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 16 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). 17 In the context of exposure to disease, the objective element asks whether prison officials 18 have exposed the prisoner to a serious medical risk of disease. To determine whether the medical 19 risk to which Plaintiff was exposed is serious, the Court considers whether the “risk the prisoner 20 complains of [is] so grave that it violates contemporary standards of decency to expose anyone 21 unwillingly to such a risk. In other words, the prisoner must show that the risk of which he 22 complaints is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 23 36 (1993). 24 The subjective element of an Eighth Amendment Violation asks whether the prison 25 official acted with “deliberate indifference” in denying medical care or exposing the prisoner to 26 the risk of disease. For conduct to qualify as “deliberately indifferent” in the context of 27 conditions of confinement, the conduct must be shown to be “wanton.” “[T]he constraints facing 28 5 1 the official” must be considered when determining whether conduct is wanton. Wilson v. Seiter, 2 501 U.S. 294, 303 (1991). A deprivation of treatment or the exposure to a hazard may be wanton 3 only if the official was able to avoid the exposure to risk or deprivation of care at the time. 4 “Wantonness consist[s] of acting sadistically and maliciously for the purpose of causing harm.” 5 Id., quoting Whitley v. Albers, 475 U.S. 312, 321-322 (1986). 6 As to the objective component, Plaintiff alleges no facts to indicate that the risk of 7 exposure to Coccidioidies immitis spores (which can develop into Valley Fever) at PVSP is any 8 higher than in the surrounding community. The attention of courts and official policy-makers 9 regarding the risk of Valley Fever has focused on PVSP and Avenal State Prison -- which are 10 both in Kern County. These facilities have drawn particular state and district court attention 11 because, although eight California correctional facilities are located in the endemic area, these 12 two facilities account for 85% of the occurrence of reported cases of Valley Fever in California. 13 See Plata v. Brown, 2013 WL 3200587 (N.D. Cal. 2013) at *2. However, an individual who lives 14 out of custody anywhere in the Southern San Joaquin Valley, also runs a relatively high risk of 15 exposure to Coccidioides immitis spores. Unless there is something regarding a prisoner’s 16 conditions of confinement that raises the risk of exposure substantially above the risk experienced 17 by the surrounding community, the court cannot conclude that the prisoner is forcibly and 18 knowingly exposed to a risk that society would not tolerate, as is required by the objective 19 component. 20 Plaintiff also fails to set forth allegations to meet the subjective component of an Eighth 21 Amendment claim. Plaintiff has not shown that Sect. Kernan acted wantonly in formulating the 22 policies and procedures which resulted in Plaintiff’s placement at PVSP. As noted above, eight 23 of the State of California’s correctional facilities -- and therefore a substantial proportion of its 24 inmate capacity -- are located in the Southern San Joaquin Valley. If Plaintiff’s allegations that 25 he was transferred to PVSP where Valley Fever is known to be endemic and contracted Valley 26 Fever, with nothing more, were cognizable, the State of California would not be able to house any 27 inmates at PVSP or Avenal State Prison, and might not be able to house any inmates in any of the 28 6 1 2 eight facilities located in the endemic area. Plaintiff has also failed to allege any facts from which to infer that Sect. Kernan was 3 deliberately indifferent to Plaintiff’s the risk of exposure to the spores that cause Valley Fever. 4 Not only has Plaintiff failed to allege any facts from which a finding of deliberate indifference 5 can be inferred, the factual background presented in Plata and other cases since 2005, following 6 placement of the CDCR’s medical care facilities in receivership, demonstrates that California 7 policy makers have been struggling for years to accommodate constitutional requirements within 8 State means. Thus, Plaintiff fails to state a cognizable claim against Sect. Kernan as a result of 9 the policies and/or procedures that led to his housing at PVSP. 10 11 b. Serious Medical Needs Plaintiff’s allegations against Dr. Ola and Does A-Z are based solely on the failure to 12 properly diagnosis and treat him for Valley Fever. Prison officials violate the Eighth Amendment 13 if they are “deliberate[ly] indifferen[t] to [a prisoner's] serious medical needs.” Estelle v. 14 Gamble, 429 U.S. 97, 104 (1976). “A medical need is serious if failure to treat it will result in ‘ 15 “significant injury or the unnecessary and wanton infliction of pain.” ’ ” Peralta v. Dillard, 744 16 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting 17 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX 18 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc)). 19 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 20 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 22 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 23 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 24 (quotation marks omitted)). 25 As to the first prong, indications of a serious medical need “include the existence of an 26 injury that a reasonable doctor or patient would find important and worthy of comment or 27 treatment; the presence of a medical condition that significantly affects an individual’s daily 28 7 1 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 2 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 3 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 4 Valley Fever is accepted as a serious medical need. 5 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 6 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 7 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 8 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 9 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 10 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 11 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 12 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 13 substantial; however, such would provide additional support for the inmate’s claim that the 14 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 15 F.2d at 1060. 16 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 17 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 18 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 19 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 20 official should have been aware of the risk, but was not, then the official has not violated the 21 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 22 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 23 Plaintiff’s allegations that Dr. Ola initially misdiagnosed Plaintiff’s Valley Fever as a cold 24 and that Dr. Ola and other medical staff subsequently misinterpreted the test results and wrongly 25 diagnosed Plaintiff with bronchitis, are not cognizable. At most, such allegations may equate to 26 negligence or medical malpractice. To be actionable under the Eighth Amendment, “the 27 indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or 28 8 1 ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 2 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 3 1051, 1060 (9th Cir.2004). 4 Plaintiff fails to state a cognizable claim against Dr. Ola and Does A-Z as he fails to show 5 that they knowingly disregarded a substantial risk of serious harm to his health. Ineptitude, no 6 matter how devastating its affect, is not deliberate indifference. ORDER 7 8 9 For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed with leave to file a second amended complaint within thirty (30) days. If Plaintiff needs an extension 10 of time to comply with this order, Plaintiff shall file a motion seeking an extension of time no 11 later than thirty (30) days from the date of service of this order. 12 Plaintiff must demonstrate in any second amended complaint how the conditions 13 complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. 14 Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific 15 terms how each named defendant is involved. There can be no liability under section 1983 unless 16 there is some affirmative link or connection between a defendant’s actions and the claimed 17 deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 18 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Plaintiff’s second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short 20 and plain statement must “give the defendant fair notice of what the . . . claim is and the grounds 21 upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 22 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 23 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 24 (2007) (citations omitted). 25 Plaintiff is cautioned that an amended complaint supercedes the original, Lacey v. 26 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 27 2012) (en banc), and must be “complete in itself without reference to the prior or superceded 28 9 1 pleading,” Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 2 3 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 4 may not change the nature of this suit by adding new, unrelated claims in his second amended 5 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 6 Based on the foregoing, it is HEREBY ORDERED that: 7 1. Plaintiff’s First Amended Complaint is dismissed, with leave to amend; 8 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 9 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 10 second amended complaint curing the deficiencies identified by the Court in this 11 order or a notice of voluntary dismissal; and 4. 12 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order and for failure to state a cognizable claim. 13 14 15 16 17 IT IS SO ORDERED. Dated: June 1, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 Sheila K. Oberto 10 .

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