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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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-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF No. 1)
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. His complaint is before the Court for

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screening.

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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). The Court must dismiss a complaint or portion thereof if the prisoner has

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

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

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

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thereof, 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 and

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

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 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”), but 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.” [sic] medical staff at SATF, CCI, and SVSP.

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His allegations may be summarized essentially as follows:
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Plaintiff suffers from severe back, neck, and shoulder pain. He has suffered

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extreme pain for five years. He was treated for a time, but complained of side effects.

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Then, “they” stopped treating him. As a result, his conditions deteriorated, and he suffers

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constant pain.

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Defendant Frite “was made aware” of Plaintiff’s condition on more than one

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occasion but did nothing. Defendant Carrasquillo “usurped the authority of her position,”

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and stated that Plaintiff couldn’t be in pain because he wasn’t crying. She denied

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Plaintiff’s requests to see a doctor. She did nothing to treat him.

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

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and his Fifth and Fourteenth Amendment rights to due process. He seeks money

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damages.

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IV.

Analysis

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A.

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Plaintiff’s reference to “et; al.” medical personnel appears to be an attempt to

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Doe Defendants

name Doe defendants.

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The use of Doe defendants generally is disfavored. Wakefield v. Thompson, 177

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F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir.

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1980)). Nevertheless, under certain circumstances, Plaintiff may, be given the

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opportunity to identify unknown defendants through discovery. Id. Before Plaintiff may

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engage in discovery as to the unknown defendants, he first must link each of them to a

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constitutional violation. He must address each defendant separately, i.e., Doe 1, Doe 2,

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Doe 3, etc., and must set forth facts describing how each Doe defendant personally

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participated in the violation of his constitutional rights. He may not simply allege liability

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on the part of a group of Defendants.

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Here, Plaintiff does not identify any Doe defendants with particularity or explain

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their participation in his case. He therefore fails to provide facts to link these Does to a

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constitutional violation. He will be given leave to amend.

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B.

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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)).

Eighth Amendment

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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 the 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) (existence of triable issue of fact as to whether defendant violated Eighth

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Amendment precluded the granting of summary judgment where plaintiff was previously

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

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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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Plaintiff’s allegations of constant and severe pain are sufficient to state a serious

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medical need. Jett, 439 F.3d at 1096 (a “serious medical need” may be shown by

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demonstrating that “failure to treat a prisoner's condition could result in further significant

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injury or the ‘unnecessary and wanton infliction of pain’”); McGuckin, 974 F.2d at 1059-

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60 (“The existence of an injury that a reasonable doctor or patient would find important

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and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a ‘serious’ need for

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medical treatment.”).

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However, he has failed to show that any Defendants acted with deliberate

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indifference. Under § 1983, Plaintiff must demonstrate that each named defendant

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personally participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77

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(2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing

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v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). Liability may not be imposed on supervisory personnel under

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the theory of respondeat superior, as each defendant is only liable for his or her own

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

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be held liable if they “participated in or directed the violations, or knew of the violations

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

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accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d

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1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff’s complaint does not allege any facts with regard to Defendant Cryer. He

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merely states his conclusion that Cryer was negligent and exhibited deliberate

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indifference. Similarly, Plaintiff states only that Defendant Frite knew of Plaintiff’s pain

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but did nothing. Such conclusory allegations are insufficient to state a claim. Plaintiff

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does not provide any facts about how these individuals were involved in his care, what

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they knew of his complaints, how they responded, or what they said about treating or not

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treating him. This last point is particularly relevant because Plaintiff alleges that his

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treatment was, at one point, discontinued due to his own reports of side effects.

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Plaintiff alleges additional facts regarding Defendant Carrasquillo but these too

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are insufficient to state a cognizable claim as it is unclear what information she had

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regarding Plaintiff’s complaints.

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Plaintiff will be given leave to amend.

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C.

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Plaintiff states his intent to bring a claim under the Fourteenth Amendment.

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However, the nature of this claim is unclear. As stated, the only allegation is that Plaintiff
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Fourteenth Amendment

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was denied treatment for his pain. This claim would appear to be cognizable, if at all,

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under the Eighth Amendment, not the Fourteenth Amendment.

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Accordingly, this claim will be dismissed. Plaintiff will be given leave to amend.

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D.

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

Fifth Amendment

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government.”

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complaint does not state a Fifth Amendment due process claim.

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

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E.

State Law Claims

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

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The Court may exercise supplemental jurisdiction over state law claims in any civil

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

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

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

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dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The

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Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . .

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the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383

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U.S. 715, 726 (1966).

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Furthermore, to bring a tort claim under California law, 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, Plaintiff has not alleged a cognizable federal claim and has not alleged

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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 provide Plaintiff with the legal

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standards applicable to what appear to be his intended claims, in the event he chooses

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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

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law, ‘[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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F.

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Plaintiff states that he has suffered extreme pain for five years. Some aspect of

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Statute of Limitations

his claims may fall outside the statute of limitations.

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No statute of limitations is set out in 42 U.S.C § 1983. Instead, California’s two

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year statute of limitations on personal injury claims applies. Cal. Code Civ. Proc.

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§ 335.1. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir 2004); Canatella v. Van De Kamp,

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486 F.3d 1128, 1132 (9th Cir. 2007); Maldonado v Harris, 370 F.3d 945, 954 (9th Cir.

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2004). Under federal law, a civil rights claim like this accrues when plaintiff knows or has

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reason to know of the injury giving rise to the claim. Olsen v. Idaho State Bd. Of Med.,

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363 F.3d 916, 926 (9th Cir. 2004); Lukovsky v. City of San Francisco, 535 F.3d 1044,

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1050-51.

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However, state law may toll the running of the statute of limitations on cases

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arising in that state and filed in Federal court. Hardin v. Straub, 490 U.S. 536, 543

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(1989). Federal courts apply a forum state’s law regarding tolling when not inconsistent
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with federal law. Id. at 537-39. California Code of Civil Procedure Section 352.1 tolls the

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running of California’s statute of limitations for two years while the Plaintiff is imprisoned

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for a term less than life in prison. Under this tolling provision, Plaintiff had a maximum of

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four years from the date his claims accrued to file suit, unless that period was extended

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by equitable tolling.

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Under California law, equitable tolling applies where “an injured person has

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several legal remedies and, reasonably and in good faith, pursues one.” Elkins v. Derby,

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525 P.2d 81, 84 (Cal. 1974). Thus, it may apply where one action “stands to lessen the

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harm that is the subject of a potential second action; where administrative remedies

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must be exhausted before a second action can proceed; or where a first action,

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embarked upon in good faith, is found to be defective for some reason.” McDonald v.

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Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026, 1032 (Cal. 2008). Equitable tolling is

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available where there is timely notice, lack of prejudice to the defendant, and

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reasonable, good faith conduct on the part of Plaintiff. Id. However, equitable tolling

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generally does not apply where Plaintiff pursues successive claims in the same forum.

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Martell v. Antelope Valley Hosp. Med. Ctr., 79 Cal. Rptr. 2d 329, 334 (Cal. Ct. App.

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1998).

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Plaintiff has not alleged any facts to indicate equitable tolling applies.

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Accordingly, under the statute of limitations, any claims that accrued five years ago may

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be time barred.

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If Plaintiff chooses to amend, he should include facts to indicate when the alleged

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violations occurred and, if applicable, any facts to support a claim of equitable tolling.

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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 an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d

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

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

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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 purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 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 “First

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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. Fed. R. Civ. P.

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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 upon which relief

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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;

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

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

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order or a notice of voluntary dismissal; and

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4. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal,

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the Court will recommend the action be dismissed, with prejudice, for failure to

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comply with a court order and failure to state a claim, subject to the “three

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strikes” provision set forth in in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

March 6, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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