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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK A. FREGIA,

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Plaintiff,

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ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.

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Case No. 1:16-cv-01866-SKO (PC)

St. CLARI, et al.,

(Doc. 12)
TWENTY-ONE (21) DAY DEADLINE
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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Mark A. Fregia, 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, therefore,

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DISMISSED and Plaintiff is provided one final opportunity to amend his pleading.

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B.

Screening Requirement and Standard

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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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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).
C.

Pleading Requirements
1.

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.

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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,
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 by simply stating which of his constitutional rights he believes were violated by each

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Defendant and the supporting facts for each claim. Plaintiff should include factual allegations

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showing acts, or failures to act, by each Defendant which Plaintiff believes violated his rights.

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Plaintiff need not and should not cite legal authority for his claims in a second amended

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complaint 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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Exhibits

The Court is not a repository for the parties’ evidence. Originals, or copies of evidence

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(i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the course of

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litigation brings the evidence into question such as on a motion for summary judgment, at trial, or

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when requested by the Court. If Plaintiff attaches exhibits to his amended complaint, each exhibit

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must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must state “see

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Exhibit A” or something similar to direct the Court to the specific exhibit Plaintiff is referencing.

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If the exhibit consists of more than one page, Plaintiff must also reference the specific page of the

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exhibit (i.e. “See Exhibit A, page 3”). At this juncture, the submission of evidence is premature

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as Plaintiff is only required to state a prima facie claim for relief. For screening purposes, the

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Court must assume that Plaintiff’s factual allegations are true. It is unnecessary for a plaintiff to

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submit exhibits in support of the allegations in a complaint.
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at Sierra Conservation Center (“SCC”) in Jamestown,

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California, where his alleged civil rights violations occurred. Plaintiff names Dr. Ridge, Dr.
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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.

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Ridge, and Dr. Forester, have known that Plaintiff’s testing levels did not require insulin

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injections. Despite this knowledge, each of these doctors refused to stop Plaintiff’s insulin

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injections and provide oral insulin instead. Plaintiff indicates that SCC puts inmates who refuse

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insulin in suicide cells, which he does not want.

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For the reasons discussed below, Plaintiff fails to state any cognizable claims. However,

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he is provided the applicable legal standards for his stated claims and one last opportunity to file

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an amended complaint.

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B.

Legal Standards
1.

Deliberate Indifference

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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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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diabetes 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 fail to show that any of the Defendants acted with deliberate

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indifference to his serious medical need by keeping him on insulin injections rather than on oral

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insulin. Plaintiff has failed to allege anything more than a difference of opinion between him and

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the prison medical staff regarding his diagnosis, treatment and medical records. This is

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insufficient to state a cognizable Eighth Amendment violation. See Estelle v. Gamble, 429 U.S.

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97, 107 (1976). If anything, Plaintiff’s allegations show that the Defendants felt that Plaintiff’s

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desire to no longer receive insulin would create a substantial risk of serious harm -- which is not
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cognizable.
4.

Injunctive Relief

Plaintiff seeks injunctive relief to prohibit forced insulin injections over his objection.

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However, federal courts are courts of limited jurisdiction and in considering a request for

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injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have

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before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct.

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1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and

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State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy

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before it, it has no power to hear the matter in question. Id. There is no case or controversy

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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

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standing to seek preliminary injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488,

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493-94, 129 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir.

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2010). Plaintiff “must show that he is under threat of suffering an ‘injury in fact’ that is concrete

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and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must

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be fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable

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judicial decision will prevent or redress the injury.” Summers, 555 U.S. at 493 (citation and

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quotation marks omitted); Mayfield, 599 F.3d at 969. Requests for prospective relief are limited

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by 18 U.S.C. ' 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court

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find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the

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violation of the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.”

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Further, the pendency of this action does not give the Court jurisdiction over prison

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officials in general or over Plaintiff=s general medical issues. Summers, 555 U.S. at 492-93;

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Mayfield, 599 F.3d at 969. The Court’s jurisdiction is limited to the parties in this action and to

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the cognizable legal claims upon which this action is proceeding. Id. Thus, the Court does not

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have jurisdiction to dictate what medical care Plaintiff should receive for any given ailment. Any

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relief will be strictly limited to the issues upon which Plaintiff might proceed if he is able to state
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a cognizable claim.
ORDER

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For the reasons set forth above, Plaintiff’s First Amended Complaint is dismissed with

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leave to file a second amended complaint within twenty-one (21) days. If Plaintiff needs an

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extension of time to comply with this order, Plaintiff shall file a motion seeking an extension of

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time no later than Twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any second amended complaint how the alleged conditions

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have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th

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Cir. 1980). The amended complaint must allege in specific terms how each named defendant is

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involved. There can be no liability under section 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978).

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A second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain

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

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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 further reminded 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.

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The Court provides Plaintiff with one final opportunity to amend to cure the deficiencies

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

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

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

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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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Within twenty-one (21) days from the date of service of this order, Plaintiff must

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file a second amended complaint curing the deficiencies identified by the Court in

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this order or a notice of voluntary dismissal; and
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If Plaintiff fails to comply with this order, a recommendation will issue that

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this action be dismissed for failure to obey a court order and for failure to

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state a cognizable claim.

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IT IS SO ORDERED.
Dated:

November 17, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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