Ayobi v. Adams et al

Filing 6

ORDER DIRECTING Plaintiff to File an Amended Complaint or Notify the Court of Intent to Proceed on Claim Found to be Cognizable; Thirty Day Deadline signed by Magistrate Judge Stanley A. Boone on 7/14/2017. (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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SHAJIA AYOBI,

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Plaintiff,
v.
DERRAL G. ADAMS, et al.,
Defendants.

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Case No.: 1:17-cv-00693-SAB (PC)
ORDER DIRECTING PLAINTIFF TO FILE AN
AMENDED COMPLAINT OR NOTIFY THE
COURT OF INTENT TO PROCEED ON CLAIM
FOUND TO BE COGNIZABLE
[ECF No. 1]
THIRTY DAY DEADLINE

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Plaintiff Shajia Ayobi is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on June 1, 2017. Local Rule 302.

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Currently before the Court is Plaintiff’s amended complaint, filed May 19, 2017.

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I.

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SCREENING REQUIREMENT

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

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governmental entity or 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 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff is in the custody of Central California Women’s Facility (“CCWF”) in Chowchilla,

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California. Plaintiff brings this civil rights action against Defendant B. Showalter, for failing to

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provide adequate medical care and against Defendant Warden Darrel G. Adams, for failing to

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supervise Defendant Showalter. Plaintiff is seeking compensatory and punitive damages on the

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grounds of severe emotional distress.

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Plaintiff alleges that Defendant Showalter was her Primary Care Physician during the relevant

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times and failed to properly prescribe Plaintiff cholesterol medication that would not cause serious and

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permanent side effects. Throughout the course of Plaintiff’s medical treatment, Defendant Showalter

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prescribed Lipitor to help reduce and control Plaintiff’s cholesterol.

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Plaintiff was hesitant about taking prescribed medication, being aware of Lipitor’s possible side

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effects and pending lawsuits against the manufacturer. Upon being prescribed Lipitor by Defendant

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Showalter, Plaintiff made her concerns known and questioned the direction of her medical treatment.
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From the initial visitation,

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Plaintiff was informed by Defendant Showalter that some of the claims of possible side effects are

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simply not true. Defendant Showalter proceeded to discuss Plaintiff’s possible side effects, explaining

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she may experience some pain and discomfort in her arms and knees.

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assurance prompted Plaintiff to take the prescribed medication.

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treatment, Plaintiff began experiencing pain in her arms and legs, which limited her daily activities.

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This prompted Plaintiff to schedule another doctor visit, where Defendant Showalter ordered lab work.

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Prior to receiving the results, Defendant Showalter called Plaintiff into her office attempting to

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subdue Plaintiff’s concerns about taking Lipitor. Defendant Showalter explained that only patients

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who have a family history of diabetes have a potential risk of being diagnosed with Type II diabetes

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on this medication. Plaintiff replied that Defendant was aware of her family history of diabetes.

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Plaintiff alleges that Defendant Showalter acted with deliberate indifference by knowingly and

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intentionally prescribing Lipitor to Plaintiff knowing of her family history of diabetes. Defendant

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Showalter instructed Plaintiff to stop taking the medication, but Plaintiff asserts it was too late as the

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damage was already done. Once the lab results returned, Plaintiff’s suspicions were confirmed; the

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medication had caused her to become a Type II diabetic. As a result, Plaintiff is currently taking 500

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mg of Metformin twice a daily and Niacin, which is known to be hard on the liver and kidneys.

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Plaintiff reasons, Defendant Showalter is responsible for her injuries, and if not for Defendant

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Showalter prescribing Lipitor, Plaintiff would not have become a Type II diabetic.

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After beginning her course of

III.

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Defendant Showalter’s

DISCUSSION

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A.

Linkage Requirement

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Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d

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at 934. To state a claim under section 1983, Plaintiff is required to show that (1) each defendant acted

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under color of state law and (2) each defendant deprived him of rights secured by the Constitution or

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federal law. Long, 442 F.3d at 1185. There is no respondeat superior liability under section 1983, and

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therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. To
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state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation

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of his rights. Jones, 297 F.3d at 934.

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Plaintiff names Defendant Adams as a defendant in this action; however the complaint is

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devoid of any factual allegations regarding any conduct by Defendant Adams. Rather, it appears that

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Plaintiff seeks to hold Defendant Adams liable based upon his position as warden at CCWF. As there

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is no respondeat superior liability under section 1983, Plaintiff has failed to state a claim against

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Defendant Adams and Defendant Adams is subject to dismissal for failure to state a cognizable claim.

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B.

Medical Indifference

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

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punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

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“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference

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requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a

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prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction

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of pain,’ ” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d

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at 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of

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and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837

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(1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d

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1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown

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where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need”

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and the indifference caused harm, Jett, 439 F.3d at 1096.

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Negligence or medical malpractice does not rise to the level of deliberate indifference.

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-

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106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition

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does not state a valid claim of medical mistreatment under the Eighth Amendment.

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malpractice does not become a constitutional violation merely because the victim is a prisoner.”

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Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995).

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Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See
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Medical

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Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support a

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claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “A difference of

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opinion between a prisoner-patient and prison medical authorities regarding treatment does not give

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rise to a [section] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal

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citation omitted); accord Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012); Wilhelm, 680 F.3d

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at 1122-1123. To prevail, plaintiff “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious

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disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1986) (internal citations omitted); accord Snow, 681 F.3d at 987-88.

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At the pleading stage, Plaintiff’s allegation that Defendant Showalter intentionally prescribed

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medication that caused serious and permanent side effects supports a cognizable claim under the

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Eighth Amendment. Plaintiff maintains that by prescribing Lipitor Defendant Showalter acted with

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deliberate indifference. Plaintiff alleges that she told Defendant Showalter that she was apprehensive

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about taking the medication and that Plaintiff had a family medical history of diabetes. Plaintiff also

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contends that Defendant Showalter knew that the manufacturer has pending lawsuits due to patients

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that have taken the medication and who are susceptible to diabetes and are now being diagnosed with

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Type II diabetes. Plaintiff’s allegation that Defendant Showalter prescribed a medication knowing it

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was contraindicated by Plaintiff’s family history, and Plaintiff developed the side effect, is sufficient

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to state a claim that Defendant Showalter was deliberately indifferent in violation of the Eighth

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Amendment.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint states cognizable claim against Defendant Showalter for deliberate

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indifference in violation of the Eighth Amendment. Plaintiff’s complaint fails to state any other

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cognizable claims as Plaintiff has not sufficiently alleged facts for her civil rights violation against

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Defendant Adams. Plaintiff is granted leave to file an amended complaint within thirty (30) days.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this
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suit by adding new, unrelated claims in her amended complaint. George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on

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the claims for deliberate indifference under the Eight Amendment, Plaintiff may so notify the Court in

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writing, and the Court will dismiss the other claims, and will forward Plaintiff one (1) summons and

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one (1) USM-285 form for completion and return. Upon receipt of the forms, the Court will direct the

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United States Marshal to initiate service of process.

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If Plaintiff opts to amend, her amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’ ” “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556

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U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall either:
a.

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File an amended complaint curing the deficiencies identified by the Court in this
order, or

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b.

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Notify the Court in writing that she does not wish to file an amended complaint

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and wishes to proceed only against Defendant Showalter on her Eighth

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Amendment claim for deliberate indifference; and
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If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.

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IT IS SO ORDERED.

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Dated:

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July 14, 2017
UNITED STATES MAGISTRATE JUDGE

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