Flowers v. Cryer et al

Filing 6

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 3/6/2017. (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 RUBEN FLOWERS, 10 Plaintiff, 11 12 CASE No. 1:17-cv-00263-MJS (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (ECF No. 1) C. CRYER, et al., THIRTY (30) DAY DEADLINE 13 Defendants. 14 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 42 U.S.C. § 1983. His complaint is before the Court for 18 screening. 19 I. Screening Requirement 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 23 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 24 relief may be granted, or that seek monetary relief from a defendant who is immune from 25 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 26 thereof, that may have been paid, the court shall dismiss the case at any time if the court 27 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 28 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 1 II. Pleading Standard 2 Section 1983 “provides a cause of action for the deprivation of any rights, 3 privileges, or immunities secured by the Constitution and laws of the United States.” 4 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 5 Section 1983 is not itself a source of substantive rights, but merely provides a method for 6 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 7 (1989). 8 To state a claim under § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated and 10 (2) that the alleged violation was committed by a person acting under the color of state 11 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 12 1243, 1245 (9th Cir. 1987). 13 A complaint must contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 15 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 16 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 17 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 18 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 19 that is plausible on its face.” Id. Facial plausibility demands more than the mere 20 possibility that a defendant committed misconduct and, while factual allegations are 21 accepted as true, legal conclusions are not. Id. at 677-78. 22 III. Plaintiff’s Allegations 23 Plaintiff is incarcerated at Salinas Valley State Prison (“SVSP”), but complains of 24 acts that occurred at the Substance Abuse Treatment Facility (“SATF”), California 25 Correctional Institution (“CCI”), and SVSP. He names the following defendants: (1) C. 26 Cryer, Medical CEO at SATF; (2) M. Frite, Medical CEO at SATF; (3) M. Carrasquillo, 27 R.N. at SATF, and (4) “et; al.” [sic] medical staff at SATF, CCI, and SVSP. 28 His allegations may be summarized essentially as follows: 2 1 Plaintiff suffers from severe back, neck, and shoulder pain. He has suffered 2 extreme pain for five years. He was treated for a time, but complained of side effects. 3 Then, “they” stopped treating him. As a result, his conditions deteriorated, and he suffers 4 constant pain. 5 Defendant Frite “was made aware” of Plaintiff’s condition on more than one 6 occasion but did nothing. Defendant Carrasquillo “usurped the authority of her position,” 7 and stated that Plaintiff couldn’t be in pain because he wasn’t crying. She denied 8 Plaintiff’s requests to see a doctor. She did nothing to treat him. 9 Plaintiff claims violations of his Eighth Amendment right to adequate medical care 10 and his Fifth and Fourteenth Amendment rights to due process. He seeks money 11 damages. 12 IV. Analysis 13 A. 14 Plaintiff’s reference to “et; al.” medical personnel appears to be an attempt to 15 Doe Defendants name Doe defendants. 16 The use of Doe defendants generally is disfavored. Wakefield v. Thompson, 177 17 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 18 1980)). Nevertheless, under certain circumstances, Plaintiff may, be given the 19 opportunity to identify unknown defendants through discovery. Id. Before Plaintiff may 20 engage in discovery as to the unknown defendants, he first must link each of them to a 21 constitutional violation. He must address each defendant separately, i.e., Doe 1, Doe 2, 22 Doe 3, etc., and must set forth facts describing how each Doe defendant personally 23 participated in the violation of his constitutional rights. He may not simply allege liability 24 on the part of a group of Defendants. 25 Here, Plaintiff does not identify any Doe defendants with particularity or explain 26 their participation in his case. He therefore fails to provide facts to link these Does to a 27 constitutional violation. He will be given leave to amend. 28 3 1 B. 2 The Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits 3 deliberate indifference to the serious medical needs of prisoners. McGuckin v. Smith, 4 974 F.2d 1050, 1059 (9th Cir. 1992). A claim of medical indifference requires (1) a 5 serious medical need, and (2) a deliberately indifferent response by defendant. Jett v. 6 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The deliberate indifference standard is met 7 by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible 8 medical need and (b) harm caused by the indifference. Id. Where a prisoner alleges 9 deliberate indifference based on a delay in medical treatment, the prisoner must show 10 that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 11 2002); McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison Comm’rs, 12 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is 13 insufficient to state a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 14 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Eighth Amendment 15 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 16 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be 17 aware of the facts from which the inference could be drawn that a substantial risk of 18 serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting 19 Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘If a prison official should have been 20 aware of the risk, but was not, then the official has not violated the Eighth Amendment, 21 no matter how severe the risk.’” Id. (brackets omitted) (quoting Gibson, 290 F.3d at 22 1188). Mere indifference, negligence, or medical malpractice is not sufficient to support 23 the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. 24 Gamble, 429 U.S. 87, 105-06 (1976)). A prisoner can establish deliberate indifference by 25 showing that officials intentionally interfered with his medical treatment for reasons 26 unrelated to the prisoner’s medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066 27 (9th Cir. 1992); Estelle, 429 U.S. at 105. 28 4 1 An allegation that prison officials deliberately ignored a prisoner’s complaint about 2 the ineffective nature of prescribed pain medication and the pain being suffered as a 3 result can, in some circumstances, give rise to a constitutional claim. See Chess v. 4 Dovey, No. CIV S-07-1767 LKK DAD P., 2011 WL 567375, at *21 (E.D. Cal. Feb. 15, 5 2011) (denying summary judgment on Eighth Amendment claim where the doctor 6 “ignored plaintiff’s complaint about the ineffective nature of the Tylenol, aspirin and other 7 medications he was being given and the pain being suffered as a result”); Franklin v. 8 Dudley, No. 2:07-cv-2259 FCD KJN P., 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29, 9 2010) (existence of triable issue of fact as to whether defendant violated Eighth 10 Amendment precluded the granting of summary judgment where plaintiff was previously 11 prescribed narcotic pain medication but now was given only Motrin, Naprosyn, and 12 Tylenol under prison’s no-narcotic policy). However, a prisoner does not have a 13 constitutional right to the medication of his choice, and a mere difference of opinion 14 regarding appropriate treatment and pain medication is insufficient to give rise to a 15 constitutional claim. Toguchi, 391 F.3d at 1058; Wilson v. Borg, No. 95-15720, 1995 WL 16 571481, at *2 (9th Cir. Sept. 27, 1995); Smith v. Norrish, No. 94-16906, 1995 WL 17 267126, at *1 (9th Cir. May 5, 1995); McMican v. Lewis, No. 94-16676, 1995 WL 18 247177, at *2 (9th Cir. Apr. 27, 1995). 19 Plaintiff’s allegations of constant and severe pain are sufficient to state a serious 20 medical need. Jett, 439 F.3d at 1096 (a “serious medical need” may be shown by 21 demonstrating that “failure to treat a prisoner's condition could result in further significant 22 injury or the ‘unnecessary and wanton infliction of pain’”); McGuckin, 974 F.2d at 1059- 23 60 (“The existence of an injury that a reasonable doctor or patient would find important 24 and worthy of comment or treatment; the presence of a medical condition that 25 significantly affects an individual's daily activities; or the existence of chronic and 26 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 27 medical treatment.”). 28 5 1 However, he has failed to show that any Defendants acted with deliberate 2 indifference. Under § 1983, Plaintiff must demonstrate that each named defendant 3 personally participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 4 (2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing 5 v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 6 930, 934 (9th Cir. 2002). Liability may not be imposed on supervisory personnel under 7 the theory of respondeat superior, as each defendant is only liable for his or her own 8 misconduct. Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only 9 be held liable if they “participated in or directed the violations, or knew of the violations 10 and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 11 accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 12 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 13 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). 14 Plaintiff’s complaint does not allege any facts with regard to Defendant Cryer. He 15 merely states his conclusion that Cryer was negligent and exhibited deliberate 16 indifference. Similarly, Plaintiff states only that Defendant Frite knew of Plaintiff’s pain 17 but did nothing. Such conclusory allegations are insufficient to state a claim. Plaintiff 18 does not provide any facts about how these individuals were involved in his care, what 19 they knew of his complaints, how they responded, or what they said about treating or not 20 treating him. This last point is particularly relevant because Plaintiff alleges that his 21 treatment was, at one point, discontinued due to his own reports of side effects. 22 Plaintiff alleges additional facts regarding Defendant Carrasquillo but these too 23 are insufficient to state a cognizable claim as it is unclear what information she had 24 regarding Plaintiff’s complaints. 25 Plaintiff will be given leave to amend. 26 C. 27 Plaintiff states his intent to bring a claim under the Fourteenth Amendment. 28 However, the nature of this claim is unclear. As stated, the only allegation is that Plaintiff 6 Fourteenth Amendment 1 was denied treatment for his pain. This claim would appear to be cognizable, if at all, 2 under the Eighth Amendment, not the Fourteenth Amendment. 3 Accordingly, this claim will be dismissed. Plaintiff will be given leave to amend. 4 D. 5 “[T]he Fifth Amendment’s due process clause applies only to the federal Fifth Amendment 6 government.” 7 complaint does not state a Fifth Amendment due process claim. Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Plaintiff’s 8 E. State Law Claims 9 Plaintiff’s complaint refers to negligence, which is a state law claim. 10 The Court may exercise supplemental jurisdiction over state law claims in any civil 11 action in which it has original jurisdiction, if the state law claims form part of the same 12 case or controversy. 28 U.S.C. § 1367(a). “The district courts may decline to exercise 13 supplemental jurisdiction over a claim under subsection (a) if . . . the district court has 14 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The 15 Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . . 16 the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 17 U.S. 715, 726 (1966). 18 Furthermore, to bring a tort claim under California law, Plaintiff must allege 19 compliance with the California Tort Claims Act (“CTCA”). Under the CTCA, a plaintiff 20 may not maintain an action for damages against a public employee unless he has 21 presented a written claim to the state Victim Compensation and Government Claims 22 Board (“VCGCB”) within six months of accrual of the action. Cal. Gov't Code §§ 905, 23 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 24 (9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to state a 25 cause of action and will result in the dismissal of state law claims. State of California v. 26 Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004). 27 Here, Plaintiff has not alleged a cognizable federal claim and has not alleged 28 compliance with the CTCA. Accordingly, the Court will not exercise supplemental 7 1 jurisdiction over Plaintiff’s state law claims. The Court will provide Plaintiff with the legal 2 standards applicable to what appear to be his intended claims, in the event he chooses 3 to amend. 4 A public employee is liable for injury to a prisoner “proximately caused by his 5 negligent or wrongful act or omission.” Cal. Gov’t Code § 844.6(d). “Under California 6 law, ‘[t]he elements of negligence are: (1) defendant’s obligation to conform to a certain 7 standard of conduct for the protection of others against unreasonable risks (duty); (2) 8 failure to conform to that standard (breach of duty); (3) a reasonably close connection 9 between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual 10 loss (damages).’” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting 11 McGarry v. Sax, 158 Cal. App. 4th 983, 994 (2008)). For claims based on medical 12 malpractice, defendant has a duty “to use such skill, prudence, and diligence as other 13 members of his profession commonly possess and exercise.” Hanson v. Grode, 76 Cal. 14 App. 4th 601, 606 (1999). 15 F. 16 Plaintiff states that he has suffered extreme pain for five years. Some aspect of 17 Statute of Limitations his claims may fall outside the statute of limitations. 18 No statute of limitations is set out in 42 U.S.C § 1983. Instead, California’s two 19 year statute of limitations on personal injury claims applies. Cal. Code Civ. Proc. 20 § 335.1. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir 2004); Canatella v. Van De Kamp, 21 486 F.3d 1128, 1132 (9th Cir. 2007); Maldonado v Harris, 370 F.3d 945, 954 (9th Cir. 22 2004). Under federal law, a civil rights claim like this accrues when plaintiff knows or has 23 reason to know of the injury giving rise to the claim. Olsen v. Idaho State Bd. Of Med., 24 363 F.3d 916, 926 (9th Cir. 2004); Lukovsky v. City of San Francisco, 535 F.3d 1044, 25 1050-51. 26 However, state law may toll the running of the statute of limitations on cases 27 arising in that state and filed in Federal court. Hardin v. Straub, 490 U.S. 536, 543 28 (1989). Federal courts apply a forum state’s law regarding tolling when not inconsistent 8 1 with federal law. Id. at 537-39. California Code of Civil Procedure Section 352.1 tolls the 2 running of California’s statute of limitations for two years while the Plaintiff is imprisoned 3 for a term less than life in prison. Under this tolling provision, Plaintiff had a maximum of 4 four years from the date his claims accrued to file suit, unless that period was extended 5 by equitable tolling. 6 Under California law, equitable tolling applies where “an injured person has 7 several legal remedies and, reasonably and in good faith, pursues one.” Elkins v. Derby, 8 525 P.2d 81, 84 (Cal. 1974). Thus, it may apply where one action “stands to lessen the 9 harm that is the subject of a potential second action; where administrative remedies 10 must be exhausted before a second action can proceed; or where a first action, 11 embarked upon in good faith, is found to be defective for some reason.” McDonald v. 12 Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026, 1032 (Cal. 2008). Equitable tolling is 13 available where there is timely notice, lack of prejudice to the defendant, and 14 reasonable, good faith conduct on the part of Plaintiff. Id. However, equitable tolling 15 generally does not apply where Plaintiff pursues successive claims in the same forum. 16 Martell v. Antelope Valley Hosp. Med. Ctr., 79 Cal. Rptr. 2d 329, 334 (Cal. Ct. App. 17 1998). 18 Plaintiff has not alleged any facts to indicate equitable tolling applies. 19 Accordingly, under the statute of limitations, any claims that accrued five years ago may 20 be time barred. 21 If Plaintiff chooses to amend, he should include facts to indicate when the alleged 22 violations occurred and, if applicable, any facts to support a claim of equitable tolling. 23 V. Conclusion and Order 24 Plaintiff’s complaint does not state a cognizable claim for relief. The Court will 25 grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 26 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate that 27 the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 28 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is 9 1 plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff 2 must also demonstrate that each named Defendant personally participated in a 3 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 4 Plaintiff should note that although he has been given the opportunity to amend, it 5 is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 6 Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on 7 curing the deficiencies set forth above. 8 Finally, Plaintiff is advised that Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. As a general rule, 10 an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 11 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no 12 longer serves any function in the case. Therefore, in an amended complaint, as in an 13 original complaint, each claim and the involvement of each defendant must be 14 sufficiently alleged. The amended complaint should be clearly and boldly titled “First 15 Amended Complaint,” refer to the appropriate case number, and be an original signed 16 under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 17 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 18 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 19 omitted). 20 Accordingly, it is HEREBY ORDERED that: 21 1. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief 22 23 24 may be granted; 2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and a copy of his complaint, filed February 24, 2017; 25 3. Within thirty (30) days from the date of service of this order, Plaintiff must file a 26 first amended complaint curing the deficiencies identified by the Court in this 27 order or a notice of voluntary dismissal; and 28 10 1 4. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal, 2 the Court will recommend the action be dismissed, with prejudice, for failure to 3 comply with a court order and failure to state a claim, subject to the “three 4 strikes” provision set forth in in 28 U.S.C. § 1915(g). 5 6 7 8 IT IS SO ORDERED. Dated: March 6, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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