Flowers v. Cryer et al

Filing 13

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Michael J. Seng on 06/12/2017. SECOND Amended Complaint due (30-Day Deadline) (Attachments: # 1 Amended Complaint Form, # 2 Complaint, dated 05/17/17)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN FLOWERS,

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Plaintiff,

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CASE No. 1:17-cv-00263-AWI-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF No. 12)
C. CRYER, et al.,
THIRTY (30) DAY DEADLINE

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. On March 7, 2017, the Court

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screened Plaintiff’s original complaint and dismissed it with leave to amend. (ECF No. 6.)

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Plaintiff’s first amended complaint (“FAC”) is now before the Court for screening.

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(ECF No. 12.)
I.

Screening Requirement

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). A court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous, malicious,” or that fail to state a claim on which relief

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may be granted, or that seek monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof,

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that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) That a right secured by the Constitution or laws of the United States was violated;

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and (2) That the alleged violation was committed by a person acting under color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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Plaintiff is incarcerated at Salinas Valley State Prison (“SVSP”). He complains of

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acts that occurred at the Substance Abuse Treatment Facility (“SATF”), California

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Correctional Institution (“CCI”), and SVSP. He names the following Defendants: (1) C.

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Cryer, Medical CEO at SATF; (2) M. Frite, Medical CEO at SATF; (3) M. Carrasquillo,

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R.N. at SATF; and (4) “et al.” All Defendants are sued in their individual capacities.

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The FAC does not set forth chronological facts. Rather, Plaintiff sets forth

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allegations against each Defendant separately. His allegations may be summarized

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essentially as follows:

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Plaintiff suffers from severe neck and back pain.

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As to Defendant Cryer, Plaintiff alleges Cryer was “well aware of [Plaintiff’s] pain

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and suffering” given that Plaintiff had submitted a 602 appeal on March 20, 2016 seeking

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medical care. Plaintiff alleges, however, that Defendant Cryer did nothing to ensure that

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Plaintiff was provided with adequate medical care, “leaving him in severe pain.” As a

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result of Defendant Cryer’s negligence, delay, and deliberate indifference to Plaintiff’s

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serious medical need, the pain in Plaintiff’s neck and back has worsened. Plaintiff

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alleges Defendant Cryer, “through his medical expertise and training, knew or should

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have known” that his delay in providing Plaintiff medical care would cause Plaintiff

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“serious harm.”

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As to Defendant Frite, Plaintiff alleges that, starting on March 20, 2016, Frite was

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aware that Plaintiff suffered from “severe pain.” Plaintiff alleges that Frite refused “to act

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upon [his] training” to prevent Plaintiff from suffering “irrepairable [sic] harm.” Plaintiff

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alleges he “continuously sought medical attention,” but was turned away with “excuses.”

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Most of these excuses were budgetary in nature. Plaintiff alleges Frite was deliberately

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indifferent to his serious medical need and that, as a result, Plaintiff now suffers from

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extreme pain in violation of his Eighth Amendment rights.

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Finally, as to Defendant Carrasquillo, Plaintiff alleges Carrasquillo also “did

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nothing to treat or assist” Plaintiff. He alleges that Carrasquillo falsely claims to have

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interviewed him on two occasions, but that she did not provide him with treatment.

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Plaintiff’s Eighth Amendment rights were violated as a result of Carrasquillo’s

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negligence, delay, and deliberate indifference to Plaintiff’s serious medical need.

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Plaintiff claims violations of his Eighth Amendment right to adequate medical care,

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his Fifth and Fourteenth Amendment rights to due process, and his Fourteenth

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Amendment right to equal protection of the laws. He seeks money damages.

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IV.

Analysis

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A. Doe Defendants

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Plaintiff again refers to “et al.” in his FAC. This appears to be an attempt to name

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Doe defendants.

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As the Court noted in its first screening, the use of Doe defendants is generally

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disfavored. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting

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Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Nevertheless, under certain

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circumstances, a plaintiff may be given the opportunity to identify unknown defendants

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through discovery. Id. Before a plaintiff may engage in discovery as to any unknown

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defendants, he or she must first link each of them to a constitutional violation. And each

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defendant must be addressed separately, i.e., Doe 1, Doe 2, Doe 3, etc. A plaintiff must

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set forth facts describing how each Doe defendant personally participated in the violation

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of his or her constitutional rights. Plaintiffs may not merely allege liability on the part of a

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group of Defendants.

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Here, once again, Plaintiff does not identify any Doe defendants with particularity

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or explain their participation in his case. He therefore fails to provide facts to link these

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Does to a constitutional violation.

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B. Eighth Amendment

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The Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits

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deliberate indifference to the serious medical needs of prisoners. McGuckin v. Smith,

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974 F.2d 1050, 1059 (9th Cir. 1992). A claim of medical indifference requires: (1) A

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serious medical need; and (2) A deliberately indifferent response by defendant. Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The deliberate indifference standard is met

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by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible

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medical need and (b) harm caused by the indifference. Id. Where a prisoner alleges
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deliberate indifference based on a delay in medical treatment, the prisoner must show

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that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir.

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2002); McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison Comm’rs,

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766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is

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insufficient to state a claim of deliberate medical indifference. Shapley, 766 F.2d at 407

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(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

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

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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be

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aware of the facts from which the inference could be drawn that a substantial risk of

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serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘If a prison official should have been

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aware of the risk, but was not, then the official has not violated the Eighth Amendment,

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no matter how severe the risk.’” Id. (brackets omitted) (quoting Gibson, 290 F.3d at

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1188). Mere indifference, negligence, or medical malpractice is not sufficient to support

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the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v.

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Gamble, 429 U.S. 87, 105-06 (1976)). A prisoner can establish deliberate indifference by

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showing that officials intentionally interfered with his medical treatment for reasons

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unrelated to the prisoner’s medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066

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(9th Cir. 1992); Estelle, 429 U.S. at 105.

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An allegation that prison officials deliberately ignored a prisoner’s complaint about

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the ineffective nature of prescribed pain medication and the pain being suffered as a

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result can, in some circumstances, give rise to a constitutional claim. See Chess v.

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Dovey, No. CIV S-07-1767 LKK DAD P., 2011 WL 567375, at *21 (E.D. Cal. Feb. 15,

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2011) (denying summary judgment on Eighth Amendment claim where medical doctor

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“ignored plaintiff’s complaint about the ineffective nature of the Tylenol, aspirin and other

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medications he was being given and the pain being suffered as a result”); Franklin v.

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Dudley, No. 2:07-cv-2259 FCD KJN P., 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29,

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2010) (holding that the existence of triable issue of fact as to whether defendant violated
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the Eighth Amendment precluded the granting of summary judgment where plaintiff was

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previously prescribed narcotic pain medication but now was given only Motrin, Naprosyn,

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and Tylenol under prison’s no-narcotic policy). However, a prisoner does not have a

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constitutional right to the medication of his choice, and a mere difference of opinion

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regarding appropriate treatment and pain medication is insufficient to give rise to a

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constitutional claim. Toguchi, 391 F.3d at 1058; Wilson v. Borg, No. 95-15720, 1995 WL

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571481, at *2 (9th Cir. Sept. 27, 1995); Smith v. Norrish, No. 94-16906, 1995 WL

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267126, at *1 (9th Cir. May 5, 1995); McMican v. Lewis, No. 94-16676, 1995 WL

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247177, at *2 (9th Cir. Apr. 27, 1995).

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As the Court stated in its first screening, Plaintiff’s allegations of “extreme” and

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“severe” pain are sufficient to state a serious medical need. Jett, 439 F.3d at 1096

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(noting that a “serious medical need” may be shown by demonstrating that “failure to

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treat a prisoner’s condition could result in further significant injury or the ‘unnecessary

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and wanton infliction of pain’”); McGuckin, 974 F.2d at 1059-60 (“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

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daily activities; or the existence of chronic and substantial pain are examples of

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indications that a prisoner has a ‘serious’ need for medical treatment.”).

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However, Plaintiff has again failed to show that any Defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons

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v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable

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if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570
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(9th Cir. 2009); Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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As in his original complaint, Plaintiff’s FAC does not allege sufficient facts to

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enable the Court to determine whether any of the named Defendants were involved in

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the provision of care to him or otherwise had the opportunity, if not the obligation, to

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ensure that adequate care was provided. For example, liability may be found if any of

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the Defendants were medical care practitioners responsible for treating Plaintiff, yet

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simply ignored his complaints of severe pain. A different standard, however, may apply

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to individuals who simply reviewed appeals in which Plaintiff complained about lack of

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care. If Plaintiff amends, he must set forth facts addressing the foregoing and explaining

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how each proposed Defendant was involved in his care, how and what they knew of his

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complaints, and include reasons given by them for not providing Plaintiff treatment.

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Although not entirely clear, it appears that Plaintiff’s claims may be based on

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Defendants’ review of or involvement in Plaintiff’s medical appeals. The denial of a

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prisoner’s administrative appeal generally does not cause or contribute to the underlying

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violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted).

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However, prison administrators cannot willfully turn a blind eye to constitutional violations

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being committed by subordinates. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006).

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Thus, there may be limited circumstances in which those involved in reviewing an inmate

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appeal can be held liable under § 1983. Those circumstances are not presented here, as

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Plaintiff has not pled any facts regarding the information contained in his appeals,

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Defendants’ involvement in those appeals, or any responses thereto.

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Plaintiff will be given further leave to amend.

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C. Fourteenth Amendment Due Process

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The nature of Plaintiff’s due process claim is unclear. To the extent it is based on

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defects in the administrative grievance process, Plaintiff is advised that he has no stand-

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alone due process rights related to the administrative grievance process. Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
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1988). Failing to properly process a grievance does not constitute a due process

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violation. See, e.g., Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL

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445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff's allegations that prison officials denied

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or ignored his inmate appeals failed to state a cognizable claim under the First

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Amendment); Williams v. Cate, No. 1:09-cv-00468-OWW-YNP PC, 2009 WL 3789597,

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at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the

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vindication of his administrative claims.”).

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Such a claim is not capable of being cured through amendment.

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D. Fourteenth Amendment Equal Protection

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The Equal Protection Clause requires that persons who are similarly situated be

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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

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(1985). An equal protection claim may be established by showing that the defendant

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intentionally discriminated against the plaintiff based on the plaintiff's membership in a

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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of

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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state

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purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). See also Lazy Y

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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of

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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

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Plaintiff does not allege membership in a protected class, intentionally

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discriminatory treatment, dissimilar treatment from others who are similarly situated, or

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any other facts to suggest an Equal Protection violation.

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Plaintiff will be given leave to amend.

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E. Fifth Amendment

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Plaintiff also states his intent to bring a due process claim under the Fifth

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Amendment. “[T]he Fifth Amendment’s due process clause applies only to the federal

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government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Here, Plaintiff’s

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allegations are against state officials. His complaint does not state a Fifth Amendment

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due process claim, and this defect is not capable of being cured through amendment.

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F. State Law Claims

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Plaintiff’s complaint also refers to negligence, which is a state law claim.

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A district court may exercise supplemental jurisdiction over state law claims in any

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civil action in which it has original jurisdiction, if the state law claims form part of the

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same case or controversy. 28 U.S.C. § 1367(a). “The district courts may decline to

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exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district

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court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

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§ 1367(c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed

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before trial . . . the state claims should be dismissed as well.” United Mine Workers of

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Am. v. Gibbs, 383 U.S. 715, 726 (1966).

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Furthermore, to bring a tort claim under California law, a plaintiff must allege

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compliance with the California Tort Claims Act (“CTCA”). Under the CTCA, a plaintiff

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may not maintain an action for damages against a public employee unless he has

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presented a written claim to the state Victim Compensation and Government Claims

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Board (“VCGCB”) within six months of accrual of the action. Cal. Gov’t Code §§ 905,

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911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477

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(9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to state a

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cause of action and will result in the dismissal of state law claims. State of California v.

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Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004).

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Here, once again, Plaintiff has not alleged a cognizable federal claim and has not

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alleged compliance with the CTCA. Accordingly, the Court will not exercise supplemental

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jurisdiction over Plaintiff’s state law claims. The Court will, however, again provide

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Plaintiff with the legal standards applicable to what appear to be his intended claims in

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the event he chooses to amend.

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A public employee is liable for injury to a prisoner “proximately caused by his

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negligent or wrongful act or omission.” Cal. Gov’t Code § 844.6(d). “Under California law,
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‘[t]he elements of negligence are: (1) defendant’s obligation to conform to a certain

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standard of conduct for the protection of others against unreasonable risks (duty); (2)

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failure to conform to that standard (breach of duty); (3) a reasonably close connection

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between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual

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loss (damages).’” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting

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McGarry v. Sax, 158 Cal. App. 4th 983, 994 (2008)). For claims based on medical

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malpractice, defendant has a duty “to use such skill, prudence, and diligence as other

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members of his profession commonly possess and exercise.” Hanson v. Grode, 76 Cal.

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App. 4th 601, 606 (1999).

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V.

Conclusion and Order

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Plaintiff’s complaint does not state a cognizable claim for relief. The Court will

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grant Plaintiff one final opportunity to further amend his complaint. Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate

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that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S.

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at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is

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plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff

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must also demonstrate that each named Defendant personally participated in a

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

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purpose of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). Plaintiff should carefully read this screening order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be
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sufficiently alleged. The amended complaint should be clearly and boldly titled “Second

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff’s amended complaint should be brief. See Fed. R. Civ.

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P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed for failure to state a claim on which relief may

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be granted;
2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and a

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copy of his complaint, filed May 17, 2017;

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3. Within thirty (30) days from the date of service of this Order, Plaintiff must file

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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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4. If Plaintiff fails to file a second amended complaint or notice of voluntary

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dismissal, the Court will recommend that the action be dismissed, with

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prejudice, for failure to comply with a court order and failure to state a claim,

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subject to the “three strikes” provision set forth in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

June 12, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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