Jennings v. Moreland et al

Filing 14

ORDER signed by Senior Judge Howard D. McKibben on 2/5/2009 GRANTING 8 Plaintiff's request to proceed IFP; Pltf is obligated to pay the statutory filing fee of $350; All fees shall be collected and paid in accordance with this court' s order to the Director of the CDCR. Pltf's claims against dfts Walker, B. Brown, Pereira, Secluna, and Lt. Goldman, and his claims for failure to protect against dft Vance, are DISMISSED for the reasons discussed, with leave to file an amended complaint within 30 days from the date of service of this order. Upon filing an amended complaint or expiration of the time allowed therefor, the court will make further orders for service of process upon some or all of the defendants. (Reader, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se. He seeks MATTHEW JENNINGS, ) ) Plaintiff, ) ) vs. ) ) A. MORELAND, et al., ) ) Defendants. ) _________________________________ ) 2:08-cv-01305-HDM-RAM ORDER UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

relief pursuant to 42 U.S.C. § 1983 and has requested authority to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to

proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1914(a), 1915(b)(1). An

initial partial filing fee of $1.77 will be assessed by this order. 1

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28 U.S.C. § 1915(b)(1).

By separate order, the court will direct

the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be

forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

A claim is legally frivolous when it lacks an arguable basis in either law or fact. (1989). Neitzke v. Williams, 490 U.S. 319, 325

The court may, therefore, dismiss a claim as frivolous

where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327.

Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. question of law. Such review is essentially a ruling on a

See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 2

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723 (9th Cir. 2000).

Dismissal for failure to state a claim is

proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff's Claims In his complaint, plaintiff asserts that he was threatened by two inmates on July 31, 2007, and attacked by one of them on August 1, 2007. During the attack, plaintiff was shot in the shoulder. Haines v. See

The "shot tore [his] shoulder open causing bleeding, immediate swelling and extreme pain." Plaintiff was taken to see defendant

nurse M. Valente, who treated him by dabbing his shoulder with a saline solution, and then was placed in administrative segregation. During his time in administrative segregation, plaintiff complained to numerous prison officials and medical staff members that he had been shot, was in extreme pain, and needed to see a doctor. He filled out numerous medical request forms, giving them On August 8,

to staff members who were administering medication.

2007, plaintiff was taken to see defendant nurse Kitty Craddock. Defendant Craddock's treatment consisted of administering plaintiff some ointment and a "bandaid"; plaintiff maintains Craddock ignored his complaints of pain. 3

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On August 9, 2007, plaintiff was released from administrative segregation into the general population. There, plaintiff

complained to another nurse, who examined his shoulder and scheduled him an appointment with a doctor the next morning. Plaintiff asserts that he was not allowed to see the doctor and appears to blame this on defendant Brown and another correctional officer, who searched his cell, found his notes regarding the events underlying his complaint, and divulged the notes' contents to prison staff mentioned in the notes. Plaintiff continued to

complain to correctional officers and medical staff members about his wound, but it was not until August 13, 2007, after showing a correctional officer his shoulder and explaining that he had not yet seen a doctor, that plaintiff was taken to the emergency room. In the emergency room, plaintiff was given a tetanus shot and a shot for the pain. Analysis of Plaintiff's Claims Plaintiff alleges that defendants Moreland and Bartel overheard the inmates' threats against plaintiff on July 31, 2007, but failed to protect him from the August 1, 2007 attack. Plaintiff has stated a claim against defendants Moreland and Bartel for a violation of his Eighth Amendment rights. Plaintiff also asserts that defendants Walker and Vance released him into the general population despite knowing he had been attacked. The Eighth Amendment requires prison officials to

take reasonable measures to guarantee the safety of prisoners, including protection from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To prevail on such a

claim, the plaintiff must show: (1) the deprivation alleged is 4

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objectively, sufficiently serious; and (2) the prison official is subjectively, deliberately indifferent to inmate safety. 834. Id. at

Plaintiff does not allege that he suffered any physical harm

as a result of his release into the general population, and to the extent he claims the harm suffered is mental or emotional, such claim is barred by the Prison Litigation Reform Act ("PLRA"). See

42 U.S.C. § 1997e(e) ("No federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."). Plaintiff has

therefore not alleged an objectively, sufficiently serious harm necessary to state an Eighth Amendment failure to protect claim against defendants Vance and Walker, and such claim will be dismissed. Plaintiff also claims that several defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. As to those defendants who were

involved in treating plaintiff, or who were given his medical request forms, namely defendants M. Valente, Kitty Craddock, Stewart, and Carol, plaintiff has stated a claim for deliberate indifference to his serious medical needs. As to those defendants

to whom plaintiff complained of his wound, his pain, and his need to see a doctor, namely defendants Vance, Brown, Miguel, and Moreland, plaintiff has also stated a claim. However, plaintiff's complaint contains insufficient factual allegations to state a claim for deliberate indifference as to defendants B. Brown, Pereira, Secluna, and Lt. Goldman. To state a

claim for a violation of the Eighth Amendment based on inadequate 5

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medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff

must show medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind, which in the medical context is deliberate indifference. Wilson v.

Seiter, 501 U.S. 294, 299 (1991); Hudson v. McMillian, 503 U.S. 1, 4 (1992). A defendant is liable for denying needed medical care

only if he "knows of and disregards an excessive risk to inmate health and safety." Gibson v. County of Washoe, 290 F.3d 1175, "Prison

1187 (9th Cir. 2002) (internal quotation marks omitted).

officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th A "serious" medical

Cir. 2002) (internal quotation marks omitted).

need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The plaintiff alleges that defendant Lt. Goldman videotaped his shoulder and questioned him about the attack. Plaintiff does

not allege that he told Lt. Goldman of his extreme pain or the fact he had not yet seen a doctor, and thus under the allegations of plaintiff's complaint there was no reason for Lt. Goldman to know of and disregard an excessive risk to plaintiff's health. Plaintiff has not stated a claim against defendant Lt. Goldman. According to plaintiff, he complained to defendants B. Brown, 6

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Pereira, and Secluna either during or immediately after seeing a nurse. Given that plaintiff had just received medical attention at

the time he complained to these defendants, the facts are insufficient to show these defendants were deliberately indifferent to his serious medical needs. Plaintiff asserts numerous factual allegations against "Moses," but does not include "Moses" in the caption of his complaint. Plaintiff is informed that if he intends to pursue his

civil rights complaint against "Moses," "Moses" needs to be listed in the caption along with the other defendants. The Health Care Services at CSP may be a proper defendant, but the plaintiff is advised that if Health Care Services is a state agency, it will be entitled to Eleventh Amendment immunity. See

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 889, 100 (1984) (Eleventh Amendment proscribes suit against state agencies "regardless of the nature of the relief sought"). Plaintiff is granted leave to amend his complaint in accordance with this order. Plaintiff is informed that the court

cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an

amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended See Loux v. Rhay, 375

complaint supersedes the original complaint. F.2d 55, 57 (9th Cir. 1967).

Once plaintiff files an amended

complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original

complaint, each claim and the involvement of each defendant must be sufficiently alleged. 7

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Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's request to proceed in forma pauperis is granted; 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. filing fee of $1.77. Plaintiff is assessed an initial partial

All fees shall be collected and paid in

accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith. 3. Plaintiff's claims against defendants Walker, B. Brown, Pereira, Secluna, and Lt. Goldman, and his claims for failure to protect against defendant Vance, are dismissed for the reasons discussed above, with leave to file an amended complaint within thirty days from the date of service of this order. Failure to

file an amended complaint will result in dismissal of those defendants from this action. 4. Upon filing an amended complaint or expiration of the time allowed therefor, the court will make further orders for service of process upon some or all of the defendants. DATED: This 5th day of February, 2009.

____________________________ UNITED STATES DISTRICT JUDGE

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