Spencer v. Kokor et al

Filing 8

ORDER DISMISSING CASE WITH LEAVE TO AMEND,signed by Magistrate Judge Jennifer L. Thurston on 06/24/2017. Amended Complaint due 21-Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD B. SPENCER,
Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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Case No. 1:17-cv-00597-DAD-JLT (PC)

KOKOR, et al.,

(Doc. 1)
21-DAY DEADLINE
Defendant.

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Plaintiff seeks to proceed on claims under the Eighth Amendment for deliberate

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indifference to his serious medical needs against Dr. Kokor and Nurse Powell for failing to timely

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renew/refill various of his medications. Plaintiff has not stated any cognizable claims, but may be

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able to do so. Thus, the Court grants him leave to file a first amended complaint.

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A.

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

Screening Requirement

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii).

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B.

Pleading Requirements
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Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting 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 that is

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plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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If he chooses to file a first amended complaint, Plaintiff should make it as concise as
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possible. He should simply state which of his constitutional rights he feels were violated by each

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Defendant and its factual basis. Where the allegations against two or more Defendants are

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factually intertwined, Plaintiff need not repeat the factual allegations separately against each

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Defendant. Rather, Plaintiff should present his factual allegations and identify the Defendants he

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feels are thereby implicated. Plaintiff need not cite legal authority for his claims in a second

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amended complaint as his factual allegations are accepted as true. The amended complaint

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should be clearly legible (see Local Rule 130(b)), and double-spaced pursuant to Local Rule

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130(c).

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2.

Linkage Requirement

The Civil Rights Act (42 U.S.C. ' 1983) requires that there be an actual connection or link

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between the actions of the defendants and the deprivation alleged to have been suffered by

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Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423

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U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation

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of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts or omits to perform an act which he is legally required to

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do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each

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named defendant with some affirmative act or omission that demonstrates a violation of

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Plaintiff=s federal rights.

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Plaintiff must clearly identify which Defendant(s) he feels are responsible for each

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violation of his constitutional rights and their factual basis as his Complaint must put each

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Defendant on notice of Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d

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1167, 1171 (9th Cir. 2004).

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C.

Plaintiff=s Claim
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Eighth Amendment -- Serious Medical Needs

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

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

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is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton
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infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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

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

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants’ response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).
As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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cornea transplant, hypertension, and diabetes are accepted as serious medical needs.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.
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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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2.

Plaintiff’s Allegations

Plaintiff alleges that Dr. Kokor has been his primary care physician for approximately

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four years. On April 6, 2016, Plaintiff had a cornea transplant and cataract surgery performed by

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ophthalmologist surgeon Dr. Rasheed. Afterwards, Dr. Rasheed prescribed ciprofloxacin and

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prednisolone so that Plaintiff’s body would not reject the cornea transplant. Approximately a

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month after the surgery, Dr. Kokor informed Plaintiff that he would require those medications for

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the rest of his life. On July 1, 2016, Plaintiff submitted a slip requesting a ciprofloxacin refill,

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which was denied by the CSATF pharmacy on July 8, 2016, because it did not have a refill order.

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On July 12, 2016, Plaintiff was interviewed on the matter by RN Powell who escorted Plaintiff to

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Dr. Kokor, but Dr. Kokor refused to refill Plaintiff’s ciprofloxacin and prednisolone. On July 27,

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2016, non-defendant FNP Merritt consulted with Dr. Rasheed and ciprofloxacin and prednisolone

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were reordered for Plaintiff.

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On August 8, 2016, Plaintiff submitted a refill request for Lisinopril for his hypertension ,

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and on August 29, 2016, Plaintiff submitted a refill request for Metformin for his diabetes, but

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both were not filled until mid-October. Plaintiff requests refills of his medications on CDC-7362

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forms. However, Nurse Powell repeatedly writes on Plaintiff’s 7362s that he should use a white

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Corcoran Pharmacy slip instead. Though both forms are approved for requesting medication

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refills, Plaintiff prefers to use 7362s as they provide proof that he submitted a refill request,

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whereas the white slips do not.

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Plaintiff’s allegations are not cognizable. It appears that Plaintiff feels Dr. Kokor and
Nurse Powell interfered with Dr. Rasheed’s post-surgical prescriptions -- which could be
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cognizable. See Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (concluding that reliance

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on “non-specialized” medical conclusions may constitute deliberate indifference to a plaintiff’s

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medical needs), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)

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(en banc); Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (“[A]llegations that a

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prison official has ignored the instructions of a prisoner’s treating physician are sufficient to state

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a claim for deliberate indifference.”). However, though Plaintiff alleges that Dr. Kokor told him

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that he would need to be on ciprofloxacin and prednisolone for the rest of his life, Plaintiff does

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not show that his eye surgeon, Dr. Rasheed (who apparently prescribed them for Plaintiff after

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surgery) initially prescribed them for the rest of Plaintiff’s life. In fact, Plaintiff’s allegations

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acknowledge that he consulted Dr. Rasheed who issued a report in which he reordered them for

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Plaintiff when they were not refilled. Plaintiff’s allegations do not show that Dr. Kokor or Nurse

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Powell interfered with medications that Dr. Rasheed prescribed.

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Plaintiff’s allegations also do not show that Dr. Kokor was aware of any other difficulties

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that Plaintiff had timely obtaining prescription refills to have been deliberately indifferent to

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Plaintiff’s medical needs. Plaintiff also fails to show that Nurse Powell was aware that Plaintiff

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had hypertension and diabetes bad enough to require medications, or that Plaintiff had standing

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prescriptions for Lisinopril and Metformin and intentionally delayed their refills. Plaintiff’s

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statement that he has a medical condition does factually support a finding that every medical

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personnel he interacts with is aware of it, or is aware of medications Plaintiff needs to treat it.

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Plaintiff also fails to state allegations to show any harm he sustained as a result of the delay in his

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receipt of any of the medications noted in his allegations. Finally, Plaintiff’s allegations show

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that, at most, she was part of a relay between his request for medication refills and a physician

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who would prescribe the refill. Plaintiff fails to show that Nurse Powell had the discretion,

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means, and authority to order a medication be refilled or to reorder medications that had been

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prescribed by a physician. Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) citing with

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approval Williams v. Bennett, 689 F.2d 1370, 1384 (11th Cir. 1982) (“There can be no duty, the

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breach of which is actionable, to do that which is beyond the power, authority, or means of the

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charged party. One may be callously indifferent to the fate of prisoners and yet not be liable for
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their injuries. Those whose callous indifference results in liability are those under a duty --

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possessed of authority and means -- to prevent the injury.”)

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prefers to use a particular form but prison officials prefer that he use a different one, does not

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describe a constitutional deprivation. Thus, Plaintiff’s allegations do not state a cognizable claim

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against Dr. Kokor or Nurse Powell.

Moreover, the fact that plaintiff

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D.

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For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first

Conclusion

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amended complaint within 21 days. If Plaintiff no longer desires to pursue this action, he may

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file a notice of voluntary dismissal. If Plaintiff needs an extension of time to comply with this

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order, Plaintiff shall file a motion seeking an extension of time no later than 21 days from the

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date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff’s first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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

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which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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

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

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

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Based on the foregoing, the Court ORDERS:

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Plaintiff’s Complaint is dismissed, with leave to amend;

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2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form; and

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3.

Within 21 days from the date of service of this order, Plaintiff must file a first
amended complaint curing the deficiencies identified by the Court in this order or

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a notice of voluntary dismissal.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a

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court order and for failure to state a claim.

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IT IS SO ORDERED.
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Dated:

July 24, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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