Christopher Lipsey, Jr. v. Depovic et al

Filing 11

SCREENING ORDER; FINDINGS and RECOMMENDATIONS that Plaintiff be Permitted to Proceed on Cognizable Claim and That Non-Cognizable Claims be Dismissed With Leave to Amend 1 ; ORDER Directing Clerk of Court to Assign Case to District Judge - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jeremy D. Peterson. New Case No. 1:18-cv-00767 LJO JDP (PC), signed by Magistrate Judge Jeremy D. Peterson on 4/2/2019: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:18-cv-00767-JDP

CHRISTOPHER LIPSEY, JR.,

SCREENING ORDER

Plaintiff,

FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF BE PERMITTED TO
PROCEED ON COGNIZABLE CLAIM AND
THAT NON-COGNIZABLE CLAIMS BE
DISMISSED WITH LEAVE TO AMEND

v.
DR. DEPOVIC, et al.,
Defendants.

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OBJECTIONS DUE IN 14 DAYS

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ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE

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ECF No. 1

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. Plaintiff’s complaint, filed June 5, 2018, ECF No. 1, is before the court

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for screening under 28 U.S.C. § 1915A. Plaintiff complains of medical deliberate indifference

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and violations of state law occurring during an eight-day period during which he was denied a

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critical medication. We have screened plaintiff’s complaint and finds that it states a claim of

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medical deliberate indifference against defendants Depovic and Grewall. We recommend that

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plaintiff’s remaining claims be dismissed without prejudice and that he be granted leave to amend

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his complaint.

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I.

STATEMENT OF FACTS1
Plaintiff was an inmate at California State Prison, Corcoran (“CSPC”) during the relevant

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timeframe. ECF No. 1 at 3. Defendants are employees at CSPC. Id. Defendant “Depovic was

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plaintiff’s [treating] psychiatrist at [CPSC] and [defendant] Grewall was her stand-in.” Id.
Plaintiff takes Effexor and tryleptal daily for his “diagnosed bi-polar affective [disorder],”

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and has been doing so for years. Id. In August 2017, a nurse and a psych tech separately

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“informed plaintiff that his Effexor needed to be renewed and he should file a sick call slip asking

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for a refill.” Id. at 3-4. Plaintiff informed the nurse that he had never had to ask for a refill in his

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years of taking Effexor, but he filled out the slip for a refill “approximately 3 days before it was

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due to expire.” Id. at 4. Plaintiff addressed this first refill request to “Dr. Depovic and/or Dr.

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Grewall.” Id. Plaintiff stated (presumably on the sick call slip) that “he tried to quit Effexor cold

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turkey and had bad withdrawals and that he is due to run out any day.” Id. Neither defendant

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Depovic nor defendant Grewall answered the sick call slip. Id. “Plaintiff wrote sick call slips

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begging and pleading each day leading up until the day his meds expired . . . to no avail.” Id.

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Plaintiff ran out of Effexor. On his second day without his medicine, he become ill, with

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symptoms including sweats, chills, stomach aches, nausea, headaches, and cramps, “which lasted

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approximately 5 days.” Id. Plaintiff “started having suicidal thoughts and cut on hi[m]self

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repeatedly, all the while plaintiff put in [sick call slips] for refills.” Id. While plaintiff was off his

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medicine, he violated the rules by holding open his food tray slot. Id. at 5. Because of this

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behavior, “plaintiff had to get a serious rules violation report write up which took away good time

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credits from his sentence.” Id. Plaintiff committed this rules violation “just to have officers

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contact a psychiatrist to give plaintiff his meds.” Id.
Defendants Bell, McCabe, and Lewis “created a policy” that inmates “must first

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experience the adverse effect such as deprivation of psych meds before any action is taken. Their

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policy also finds no wrongdoing when doctors . . . do not renew their patients’ meds knowing the

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We draw the following facts from plaintiff’s complaint, ECF No. 1, and accept them as true for
screening purposes.
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side effects will be painful withdraws for at least a week followed by severe depression.” Id. at 4.

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II.

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SCREENING AND PLEADING REQUIREMENTS
A district court must screen a prisoner’s complaint that seeks relief against a governmental

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entity, its officer, or its employee. See 28 U.S.C. § 1915A(a). The court must identify any

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cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

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A complaint must contain a short and plain statement that plaintiff is entitled to relief,

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Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its

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face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not

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require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). If the allegations “do not permit the court to infer more than the mere

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possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not

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identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,

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1038 (9th Cir. 2016) (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)). Instead, what

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plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to

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relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc)

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(citations omitted).

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The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

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U.S. 519, 520 (1972) (per curiam). However, the court may dismiss a pro se litigant’s complaint

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“if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir.

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2017) (quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)).

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III.

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DISCUSSION
Section 1983 allows a private citizen to sue for the deprivation of a right secured by

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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

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state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law

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caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park
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v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation

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requirement by showing either (1) the defendant’s “personal involvement” in the alleged

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deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a

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supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th

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Cir. 2018). As for the second method, the plaintiff can establish a causal connection by showing

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that the defendant “set[] in motion a series of acts by others, or by knowingly refus[ing] to

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terminate a series of acts by others,” which the defendant “knew or reasonably should have

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known would cause others to inflict a constitutional injury.” Id.

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All of the named defendants are state-prison employees who, accepting plaintiff’s

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allegations as true, can be inferred to have acted under color of state law. See Paeste v. Gov’t of

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Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (“[G]enerally, a public employee acts under color of

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state law while acting in his official capacity or while exercising his responsibilities pursuant to

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state law.” (quoting West v. Atkins, 487 U.S. 42, 50 (1988))). We next consider whether plaintiff

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alleged sufficient facts to satisfy the causation requirement.

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Plaintiff plausibly alleges that defendants Depovic and Grewall personally participated in

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or caused the alleged deprivations. However, plaintiff does not plausibly allege that defendants

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Bell, McCabe, and Lewis personally participated in or caused the alleged deprivations; instead,

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plaintiff seems to rely on a theory of vicarious liability. See Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1948 (2009) (“[V]icarious liability is inapplicable to Bivens and § 1983 suits[;] a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.”). Beyond naming these defendants in the complaint, plaintiff alleges

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that defendants Bell, McCabe, and Lewis created a policy. This allegation does not satisfy the

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causation requirement of § 1983 because the alleged action of these defendants was not “the

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moving force of the behind the constitutional violation.” Navarro v. Herndon, 2016 WL

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8731088, at *13 (E.D. Cal. Mar. 25, 2016) (“Ratification of an unconstitutional act by superiors

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after the fact will only support liability when the superiors’ past actions were the moving force

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behind the constitutional violation in the first place.” (citing Williams v. Ellington, 936 F.2d 881,

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884-85 (9th Cir. 1991)). Accordingly, plaintiff fails to allege causation for these defendants as
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required to bring a claim under § 1983.
The remaining question is whether defendants Depovic and Grewall’s alleged actions

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violated federal law. Plaintiff seeks to bring claims for Eighth Amendment medical deliberate

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indifference and violation of the California Bane Act. We analyze each in turn.

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A. Medical Deliberate Indifference

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Plaintiff alleges that defendants Depovic and Grewall acted with deliberate indifference to

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his serious medical needs when they failed to renew his medicine prescription for eight days,

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causing plaintiff to experience withdrawal symptoms and commit a rules violation.

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The government has an “obligation to provide medical care for those whom it is punishing

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by incarceration,” and “deliberate indifference to serious medical needs of prisoners constitutes

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the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.

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Gamble, 429 U.S. 97, 103-04 (1976) (internal citation omitted) (quoting Gregg v. Georgia, 428

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U.S. 153, 173 (1976)). This indifference can be “manifested by prison doctors in their response

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to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical

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care or intentionally interfering with the treatment once prescribed.” Id. at 104-05 (footnotes

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omitted).

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There is a two-part test for deliberate indifference: “First, the plaintiff must show a serious

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medical need by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must

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show the defendant’s response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680

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F.3d 1113, 1122 (9th Cir. 2012) (internal quotation marks and citation omitted). “This second

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prong—defendant’s response to the need was deliberately indifferent—is satisfied by showing (a)

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a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm

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caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

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citations omitted).

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The complaint alleges facts to support the conclusion that plaintiff had a serious medical

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need—given his bipolar affective disorder. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th

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Cir. 1992) (“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 significantly

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affects an individual's daily activities; or the existence of chronic and substantial pain are

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examples of indications that a prisoner has a ‘serious’ need for medical treatment.”), overruled on

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other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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Therefore, plaintiff has adequately pled a serious medical need.

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Plaintiff alleges that defendants Depovic and Grewall were responsible for his bipolar

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affective disorder treatment, including refilling his medicine; were informed through multiple

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medical slips that plaintiff’s medicine ran out; and failed to provide him with medicine, causing

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withdrawal symptoms and eventually driving plaintiff to commit a serious rules violation report

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to get their attention. These allegations are sufficient to state a claim for medical deliberate

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indifference. See Fed. R. Civ. P. 8(a).

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B. Bane Act

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California’s Tom Bane Civil Rights Act (“Bane Act”) creates a private right of action for

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anyone whose exercise of constitutional rights is interfered with, or attempted to be interfered

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with, “by threat, intimidation, or coercion.” Cal. Civ. Code § 52.1(b)-(c). Thus, a Bane Act

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claim requires plaintiff to show “an attempted or completed act of interference with a legal right,

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accompanied by a form of coercion.” Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998).

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Plaintiff has not stated a cognizable claim for violation of the Bane Act. Plaintiff alleges

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that defendants Depovic and Grewall acted with medical deliberate indifference when they failed

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to provide him with his medicine, but plaintiff has not alleged any facts that indicate “threat,

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intimidation, or coercion” on the part of any defendant. See Cal. Civ. Code § 52.1(b)-(c).

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IV.

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CONCLUSION
The court has screened plaintiff’s complaint and finds that plaintiff has stated a medical

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deliberate indifference claim against defendants Depovic and Grewall. We recommend that

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plaintiff’s remaining claims be dismissed without prejudice and that plaintiff be granted leave to

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amend the complaint.

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Should plaintiff choose to amend the complaint, the amended complaint should be brief,

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Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of
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plaintiff’s constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 570). There is no respondeat superior liability, and each defendant is only liable for his or her

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own misconduct. See id. at 677. Plaintiff must allege that each defendant personally participated

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in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note

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that a short, concise statement of the allegations in chronological order will assist the court in

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identifying his claims. Plaintiff should name each defendant and explain what happened,

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describing personal acts by the individual defendant that resulted in the violation of plaintiff’s

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rights. Plaintiff should also describe any harm he suffered from the violation of his rights.

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Plaintiff should not fundamentally alter his complaint or add unrelated issues. See Fed. R. Civ. P.

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18; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different

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defendants belong in different suits . . . .”).

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Any amended complaint will supersede the original complaint, Lacey v. Maricopa

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County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face

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without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an

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amended complaint is filed, the original complaint no longer serves any function in the case.

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The amended complaint should be titled “First

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

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penalty of perjury.

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IV.

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The clerk of court is directed to assign this case to a district judge, who will preside over

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ORDER

this case. The undersigned will remain as the magistrate judge assigned to the case.

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V.

RECOMMENDATIONS

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Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a

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magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams

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v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a
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magistrate judge’s jurisdiction, so any dismissal of a claim requires an order from a district judge.

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Id. Thus, the undersigned submits the following findings and recommendations to a United

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States District Judge under 28 U.S.C. § 636(b)(l):

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1. Plaintiff states a medical deliberate indifference claim against defendants Depovic and

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Grewall.
2. Plaintiff’s remaining claims and all other defendants should be dismissed without

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prejudice, and plaintiff should be granted leave to amend the complaint.

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3. If plaintiff files an amended complaint, defendants Bell, Lewis, and McCabe need not

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respond until the court screens the amended complaint.

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Within fourteen days of service of these findings and recommendations, the parties may

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file written objections with the court. If the parties file such objections, they should do so in a

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document captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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parties are advised that failure to file objections within the specified time may result in the waiver

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of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

April 2, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 204

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