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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN CONTRERAS,

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Case No. 1:16-cv-01111-SKO (PC)

Plaintiff,

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v.

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ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

KERNAN, et al.,

(Doc. 1)
THIRTY-DAY DEADLINE
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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Ruben Contreras, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a

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cognizable claim upon which relief may be granted. The First Amended Complaint is

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DISMISSED with leave to amend.

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B.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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Screening Requirement and Standard

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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C.

Pleading Requirements
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Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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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

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

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678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but

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legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d

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962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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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

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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If he chooses to file a second amended complaint, Plaintiff should make it as concise as

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possible and simply state which of his constitutional rights he believes were violated by each

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Defendant and the factual basis. Plaintiff need not and should not cite legal authority for his

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claims as his factual allegations are accepted as true.

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2.

Linkage and Causation

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

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

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342.

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DISCUSSION
Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at California State Prison, Solano (“CSP-Sol”), but his

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allegations are based on circumstances that allegedly occurred while he was housed at Pleasant

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Valley State Prison (“PVSP”). Plaintiff names Secretary Scott Kernan, Dr. Adinwumi Ola, and

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“Does A-Z” as the defendants in this action and seeks monetary damages.

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Plaintiff alleges that when he was housed at PVSP, he contracted Valley Fever. Plaintiff

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alleges that Sect. Kernan was aware of the threat Valley Fever posed to Plaintiff’s health and

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should not have housed him at PVSP. Plaintiff alleges that when he began to have symptoms, he

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presented to Dr. Ola who misdiagnosed him has having a cold, gave him medication, and sent

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him away. When Plaintiff again presented to Dr. Ola and demanded a test to see if he had Valley

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Fever, Dr. Ola and other medical staff misinterpreted the test results and wrongly diagnosed

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Plaintiff with bronchitis. A month later, Plaintiff was disoriented on the prison yard and was

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rushed for emergency surgery at an outside hospital where a permanent shunt was placed in his

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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.

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Eighth Amendment
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Legal Standards

Conditions of Confinement

Plaintiff’s allegations against Sect. Kernan are based solely on his placement at PVSP.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison

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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

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In the context of exposure to disease, the objective element asks whether prison officials

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have exposed the prisoner to a serious medical risk of disease. To determine whether the medical

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risk to which Plaintiff was exposed is serious, the Court considers whether the “risk the prisoner

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complains of [is] so grave that it violates contemporary standards of decency to expose anyone

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unwillingly to such a risk. In other words, the prisoner must show that the risk of which he

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complaints is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25,

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36 (1993).

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The subjective element of an Eighth Amendment Violation asks whether the prison

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official acted with “deliberate indifference” in denying medical care or exposing the prisoner to

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the risk of disease. For conduct to qualify as “deliberately indifferent” in the context of

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conditions of confinement, the conduct must be shown to be “wanton.” “[T]he constraints facing

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the official” must be considered when determining whether conduct is wanton. Wilson v. Seiter,

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501 U.S. 294, 303 (1991). A deprivation of treatment or the exposure to a hazard may be wanton

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only if the official was able to avoid the exposure to risk or deprivation of care at the time.

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“Wantonness consist[s] of acting sadistically and maliciously for the purpose of causing harm.”

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Id., quoting Whitley v. Albers, 475 U.S. 312, 321-322 (1986).

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As to the objective component, Plaintiff alleges no facts to indicate that the risk of

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exposure to Coccidioidies immitis spores (which can develop into Valley Fever) at PVSP is any

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higher than in the surrounding community. The attention of courts and official policy-makers

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regarding the risk of Valley Fever has focused on PVSP and Avenal State Prison -- which are

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both in Kern County. These facilities have drawn particular state and district court attention

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because, although eight California correctional facilities are located in the endemic area, these

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two facilities account for 85% of the occurrence of reported cases of Valley Fever in California.

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See Plata v. Brown, 2013 WL 3200587 (N.D. Cal. 2013) at *2. However, an individual who lives

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out of custody anywhere in the Southern San Joaquin Valley, also runs a relatively high risk of

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exposure to Coccidioides immitis spores. Unless there is something regarding a prisoner’s

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conditions of confinement that raises the risk of exposure substantially above the risk experienced

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by the surrounding community, the court cannot conclude that the prisoner is forcibly and

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knowingly exposed to a risk that society would not tolerate, as is required by the objective

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component.

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Plaintiff also fails to set forth allegations to meet the subjective component of an Eighth

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Amendment claim. Plaintiff has not shown that Sect. Kernan acted wantonly in formulating the

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policies and procedures which resulted in Plaintiff’s placement at PVSP. As noted above, eight

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of the State of California’s correctional facilities -- and therefore a substantial proportion of its

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inmate capacity -- are located in the Southern San Joaquin Valley. If Plaintiff’s allegations that

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he was transferred to PVSP where Valley Fever is known to be endemic and contracted Valley

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Fever, with nothing more, were cognizable, the State of California would not be able to house any

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inmates at PVSP or Avenal State Prison, and might not be able to house any inmates in any of the

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eight facilities located in the endemic area.
Plaintiff has also failed to allege any facts from which to infer that Sect. Kernan was

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deliberately indifferent to Plaintiff’s the risk of exposure to the spores that cause Valley Fever.

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Not only has Plaintiff failed to allege any facts from which a finding of deliberate indifference

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can be inferred, the factual background presented in Plata and other cases since 2005, following

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placement of the CDCR’s medical care facilities in receivership, demonstrates that California

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policy makers have been struggling for years to accommodate constitutional requirements within

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State means. Thus, Plaintiff fails to state a cognizable claim against Sect. Kernan as a result of

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the policies and/or procedures that led to his housing at PVSP.

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b.

Serious Medical Needs

Plaintiff’s allegations against Dr. Ola and Does A-Z are based solely on the failure to

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properly diagnosis and treat him for Valley Fever. Prison officials violate the Eighth Amendment

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if they are “deliberate[ly] indifferen[t] to [a prisoner's] serious medical needs.” Estelle v.

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Gamble, 429 U.S. 97, 104 (1976). “A medical need is serious if failure to treat it will result in ‘

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“significant injury or the unnecessary and wanton infliction of pain.” ’ ” Peralta v. Dillard, 744

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F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc)).

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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Valley Fever is accepted as a serious medical need.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff’s allegations that Dr. Ola initially misdiagnosed Plaintiff’s Valley Fever as a cold

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and that Dr. Ola and other medical staff subsequently misinterpreted the test results and wrongly

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diagnosed Plaintiff with bronchitis, are not cognizable. At most, such allegations may equate to

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negligence or medical malpractice. To be actionable under the Eighth Amendment, “the

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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or

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‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories,

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622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir.2004).

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Plaintiff fails to state a cognizable claim against Dr. Ola and Does A-Z as he fails to show

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that they knowingly disregarded a substantial risk of serious harm to his health. Ineptitude, no

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matter how devastating its affect, is not deliberate indifference.
ORDER

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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

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of time to comply with this order, Plaintiff shall file a motion seeking an extension of time no

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later than thirty (30) days from the date of service of this order.

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Plaintiff must demonstrate in any second amended complaint how the conditions

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complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific

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terms how each named defendant is involved. There can be no liability under section 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff’s second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short

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and plain statement must “give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is cautioned that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 220.
The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

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may not change the nature of this suit by adding new, unrelated claims in his second amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s First Amended Complaint is dismissed, with leave to amend;

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

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3.

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

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second amended complaint curing the deficiencies identified by the Court in this

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order or a notice of voluntary dismissal; and
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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.

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IT IS SO ORDERED.
Dated:

June 1, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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