Fregia v. St. Clair et al

Filing 16

ORDER DISMISSING 12 First Amended Complaint WITH LEAVE TO AMEND; Amended Complaint due within Twenty-One (21) Days signed by Magistrate Judge Sheila K. Oberto on 11/17/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARK A. FREGIA, 10 Plaintiff, 11 ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND v. 12 Case No. 1:16-cv-01866-SKO (PC) St. CLARI, et al., (Doc. 12) TWENTY-ONE (21) DAY DEADLINE 13 Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, Mark A. Fregia, 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, therefore, 20 DISMISSED and Plaintiff is provided one final opportunity to amend his pleading. 21 B. Screening Requirement and Standard 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 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 1 1 2 3 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 4 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 5 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 6 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 8 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 9 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 10 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 11 when a pleading says too little -- the baseline threshold of factual and legal allegations required 12 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 13 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 14 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 15 have never held -- and we know of no authority supporting the proposition -- that a pleading may 16 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 17 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 18 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 19 impose unfair burdens on litigants and judges”). 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 21 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 22 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 23 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 24 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 25 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 26 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 27 28 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 1 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 3 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 4 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 5 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 6 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 7 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 8 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 9 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 10 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 11 12 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 13 when the opportunity to correct the pleadings has been afforded and there has been no 14 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 15 2013). 16 If he chooses to file a second amended complaint, Plaintiff should make it as concise as 17 possible by simply stating which of his constitutional rights he believes were violated by each 18 Defendant and the supporting facts for each claim. Plaintiff should include factual allegations 19 showing acts, or failures to act, by each Defendant which Plaintiff believes violated his rights. 20 Plaintiff need not and should not cite legal authority for his claims in a second amended 21 complaint 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 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 3 1 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 2 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 3 or causal connection, between each defendant’s actions or omissions and a violation of his federal 4 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 5 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 6 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 7 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 8 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 9 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 10 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 11 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 12 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 3. 13 14 Exhibits The Court is not a repository for the parties’ evidence. Originals, or copies of evidence 15 (i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the course of 16 litigation brings the evidence into question such as on a motion for summary judgment, at trial, or 17 when requested by the Court. If Plaintiff attaches exhibits to his amended complaint, each exhibit 18 must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must state “see 19 Exhibit A” or something similar to direct the Court to the specific exhibit Plaintiff is referencing. 20 If the exhibit consists of more than one page, Plaintiff must also reference the specific page of the 21 exhibit (i.e. “See Exhibit A, page 3”). At this juncture, the submission of evidence is premature 22 as Plaintiff is only required to state a prima facie claim for relief. For screening purposes, the 23 Court must assume that Plaintiff’s factual allegations are true. It is unnecessary for a plaintiff to 24 submit exhibits in support of the allegations in a complaint. DISCUSSION 25 Plaintiff’s Allegations 26 A. 27 Plaintiff is currently incarcerated at Sierra Conservation Center (“SCC”) in Jamestown, 28 California, where his alleged civil rights violations occurred. Plaintiff names Dr. Ridge, Dr. 4 1 2 Savage, and Dr. Forester as Defendants and seeks monetary and injunctive relief. Plaintiff alleges that on February 9, 2015, and all times since that date, Dr. Savage, Dr. 3 Ridge, and Dr. Forester, have known that Plaintiff’s testing levels did not require insulin 4 injections. Despite this knowledge, each of these doctors refused to stop Plaintiff’s insulin 5 injections and provide oral insulin instead. Plaintiff indicates that SCC puts inmates who refuse 6 insulin in suicide cells, which he does not want. 7 For the reasons discussed below, Plaintiff fails to state any cognizable claims. However, 8 he is provided the applicable legal standards for his stated claims and one last opportunity to file 9 an amended complaint. 10 11 B. Legal Standards 1. Deliberate Indifference 12 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 13 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 14 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 15 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 16 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 17 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 18 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 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 5 1 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 2 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 3 diabetes is accepted as a serious medical need. 4 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 5 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 6 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 7 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 8 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 9 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 10 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 11 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 12 substantial; however, such would provide additional support for the inmate’s claim that the 13 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 14 F.2d at 1060. 15 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 16 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 17 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 18 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 19 official should have been aware of the risk, but was not, then the official has not violated the 20 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 21 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 22 Plaintiff’s allegations fail to show that any of the Defendants acted with deliberate 23 indifference to his serious medical need by keeping him on insulin injections rather than on oral 24 insulin. Plaintiff has failed to allege anything more than a difference of opinion between him and 25 the prison medical staff regarding his diagnosis, treatment and medical records. This is 26 insufficient to state a cognizable Eighth Amendment violation. See Estelle v. Gamble, 429 U.S. 27 97, 107 (1976). If anything, Plaintiff’s allegations show that the Defendants felt that Plaintiff’s 28 desire to no longer receive insulin would create a substantial risk of serious harm -- which is not 6 1 2 3 cognizable. 4. Injunctive Relief Plaintiff seeks injunctive relief to prohibit forced insulin injections over his objection. 4 However, federal courts are courts of limited jurisdiction and in considering a request for 5 injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have 6 before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 7 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and 8 State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy 9 before it, it has no power to hear the matter in question. Id. There is no case or controversy 10 11 before this Court as Plaintiff has not stated any cognizable claims. If Plaintiff is able to set forth a cognizable claim, he must next establish that he has 12 standing to seek preliminary injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 13 493-94, 129 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 14 2010). Plaintiff “must show that he is under threat of suffering an ‘injury in fact’ that is concrete 15 and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must 16 be fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable 17 judicial decision will prevent or redress the injury.” Summers, 555 U.S. at 493 (citation and 18 quotation marks omitted); Mayfield, 599 F.3d at 969. Requests for prospective relief are limited 19 by 18 U.S.C. ' 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court 20 find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the 21 violation of the Federal right, and is the least intrusive means necessary to correct the violation of 22 the Federal right.” 23 Further, the pendency of this action does not give the Court jurisdiction over prison 24 officials in general or over Plaintiff=s general medical issues. Summers, 555 U.S. at 492-93; 25 Mayfield, 599 F.3d at 969. The Court’s jurisdiction is limited to the parties in this action and to 26 the cognizable legal claims upon which this action is proceeding. Id. Thus, the Court does not 27 have jurisdiction to dictate what medical care Plaintiff should receive for any given ailment. Any 28 relief will be strictly limited to the issues upon which Plaintiff might proceed if he is able to state 7 1 a cognizable claim. ORDER 2 3 For the reasons set forth above, Plaintiff’s First Amended Complaint is dismissed with 4 leave to file a second amended complaint within twenty-one (21) days. If Plaintiff needs an 5 extension of time to comply with this order, Plaintiff shall file a motion seeking an extension of 6 time no later than Twenty-one (21) days from the date of service of this order. 7 Plaintiff must demonstrate in any second amended complaint how the alleged conditions 8 have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th 9 Cir. 1980). The amended complaint must allege in specific terms how each named defendant is 10 involved. There can be no liability under section 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 12 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 13 743 (9th Cir. 1978). 14 A second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain 15 statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 16 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 17 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 18 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 19 (2007) (citations omitted). 20 Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 21 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 22 2012) (en banc), and must be “complete in itself without reference to the prior or superceded 23 pleading,” Local Rule 220. 24 The Court provides Plaintiff with one final opportunity to amend to cure the deficiencies 25 identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 26 Plaintiff may not change the nature of this suit by adding new, unrelated claims in his second 27 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 28 complaints). 8 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. Plaintiff’s First Amended Complaint is dismissed, with leave to amend; 3 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 4 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 5 file a second amended complaint curing the deficiencies identified by the Court in 6 this order or a notice of voluntary dismissal; and 4. 7 If Plaintiff fails to comply with this order, a recommendation will issue that 8 this action be dismissed for failure to obey a court order and for failure to 9 state a cognizable claim. 10 11 12 IT IS SO ORDERED. Dated: November 17, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 .

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