Avery v. Nangalama et al

Filing 9

ORDER signed by Circuit Judge Marsha S. Berzon on 4/9/2010 ORDERING that Pltf's 2 Motion to Proceed IFP is GRANTED. Pltf to pay $350 filing fee. Dfts Adams, Menon, and Nangalama shall answer Count 2 of the complaint. Counts 1,3,4, and 5 are DISMISSED without prejudice. The Clerk to send Pltf a service packet. Within 30 days Pltf must complete the Notice of Submission of Documents and submit service docs to the Court. (Engbretson, K.)

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. N A N G A L A M A , MENON, and K. A D A M S, KYLE AVERY, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) C a s e No. 2:08-cv-02873-MSB ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

T h is case was reassigned to the undersigned judge. (Dkt. #8). Plaintiff Kyle Avery, w h o is confined in the California State Prison, Sacramento, has filed a pro se civil rights c o m p la in t pursuant to 42 U.S.C. § 1983. (Dkt. #1). After reviewing Avery's Application to Proceed In Forma Pauperis and screening the complaint pursuant to 28 U.S.C. § 1915A, th e Court will grant Avery's request to proceed in forma pauperis, order Defendants Adams, M e n o n , and Nangalama to answer Count 2 of the Complaint, and dismiss the remaining c la im s without prejudice. I. Application to Proceed In Forma Pauperis & Filing Fee A v e ry requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D k t. #2). Avery has made the showing required by § 1915(a)(1),(2) and his request to p ro c e ed in forma pauperis will be granted. Pursuant to 28 U.S.C. § 1915(b)(1), Avery is o b lig a te d to pay the statutory filing fee of $350.00 for this action. An initial partial filing fee w ill not be assessed, as Avery's average monthly deposit is $0.00. Avery is required to make

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m o n th ly payments of twenty percent of the preceding month's income credited to Avery's tru s t account, if any. By separate order, the Court will direct the California Department of C o rre c tio n s to collect these payments and forward them to the Clerk of the Court each time th e amount in Avery's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). II. S ta tu to r y Screening of Prisoner's Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). III. C o m p l a in t In his Complaint, Avery sets forth five counts for relief, alleging that Defendants N a n g a lam a , Menon, and Adams violated his rights under the Fifth, Eighth, and Fourteenth A m e n d m e n ts . Specifically, Avery contends that Nangalama, Menon, and Adams (1) violated h is Fifth Amendment rights by "treat[ing] [Avery] in a manner different then [sic] the other in m a tes living in a simularely [sic] situated program (Dkt. #1 at 25); (2) violated his Eighth A m e n d m e n t rights by "being deliberately indifferent to Plaintiff's obvious and documented m e d i c a l needs and harms. . . cause[d] by immediately [and/or] permanently stopping [his] tre a tm e n t . . . ." (id. at 30); (3) violated his Eighth Amendment rights by "conspir[ing] with f e llo w co-workers to creat [sic] false accusations against Plaintiff to justify and creat [sic] f o u n d a tio n for depriving [his] medical treatment . . . . to retaliate for Plaintiffs [sic] trying to f a c tu a lly exhaust his remedy [and] then trying to discourage him from his right to obtain his re d re ss rights." (id. at 34); (4) violated his Fourteenth Amendment right to equal protection " in that any civil rights violation is a violation of Plaintiffs [sic] rights to equal protection of la w because any right violated is a right that has been deprived . . . ." (id. at 35); and (5) v io la te d his Fourteenth Amendment right to due process "in that his admin[istrative] remedy -2-

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w a s not reasonably enforced as was determined in his remedies disposition[,] thus impeeding [ sic ] and hindering further exhaustion and further therein impeeding [sic] his access to the c o u rts . . . ." (id. at 36). IV . F a ilu r e to State a Claim 4 2 U.S.C. § 1983 provides a cause of action against persons acting under color of state la w who have violated rights guaranteed by the United States Constitution. See Buckley v. C ity of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1 1 4 6 (9th Cir. 1984). To state a valid claim for relief under § 1983, a plaintiff must allege th a t he suffered a specific injury as a result of a defendant's specific conduct and show an a f f irm a tiv e link between the injury and that defendant's conduct. See Rizzo v. Goode, 423 U .S . 362, 371-72, 377 (1976). A. P le a d in g Standard

P r o se pleadings are to be liberally construed. Hains v. Kerner, 404 U.S. 519, 520-21 (1 9 7 2 ). Nonetheless, a pro se plaintiff must satisfy the pleading standard set forth in the F e d e ra l Rules of Civil Procedure, which requires a "short and plain statement of the claim s h o w in g that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). In ad d itio n ,"[ e]a ch allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). W h ile Rule 8 does not demand detailed factual allegations, "it demands more than an u n a d o rn e d , the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1 9 3 7 , 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by m e re conclusory statements, do not suffice." Id. If the Court determines that a pleading c o u ld be cured by the allegation of other facts, a litigant is entitled to an opportunity to a m e n d his complaint. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en b an c). B. F ifth Amendment

A v e ry contends that Nangalama, Menon, and Adams violated his rights under the F if th Amendment.

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" [ T ]h e Fifth Amendment's due process clause only applies to the federal g o v e rn m e n t." Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (citing Castillo v . McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) ("The Fifth Amendment prohibits th e federal government from depriving persons of due process, while the Fourteenth A m e n d m e n t explicitly prohibits deprivations without due process by the several States: `n o r shall any State deprive any person of life, liberty, or property, without due process of la w .'" ) (emphasis added) (quoting U.S. CONST. amend. XIV)). Nangalama, Menon, and A d a m s are state officials, so Avery has no cause of action against them under the Fifth A m e n d m e n t. C. F o u r te e n th Amendment i. Equal Protection P la in tif f contends that Nangalama, Menon, and Adams violated his rights under the E q u a l Protection Clause of the Fourteenth Amendment because "any civil rights violation is a violation of Plaintiffs [sic] right to equal protection of law . . .". (Dkt. #1, p.35). That c o n ten tio n is incorrect. T h e Equal Protection Clause requires that persons who are similarly situated be tre a te d alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff cannot successfully allege an equal protection claim unless he shows that he is a m e m b e r of an identifiable class and was intentionally treated differently from others similarly s itu a te d because of his membership in that class. See, e.g., Village of Willowbrook v. Olech, 5 2 8 U.S. 562, 564 (2000); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9 th Cir. 2004). Avery does not allege membership in any identifiable class or that the d isc o n tin u a tio n of his medication was a product of discrimination based on membership in a n identifiable class. Thus, Avery fails to state a claim against the defendants under the E q u a l Protection Clause. ii. Due Process A v e ry contends that Nangalama, Menon, and Adams violated his constitutional rights u n d e r the Due Process Clause of the Fourteenth Amendment by "not reasonably enforc[ing] -4-

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[ h is administrative remedy] as was determined in his remedies disposition . . . ." (Dkt. #1 at 36). T h e Due Process Clause of the Fourteenth Amendment protects prisoners from being d e p riv e d of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U .S . 539, 556 (1974). It does not, however, create any "legitimate claim of entitlement to a grievance procedure." Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations o m itted ). Nor does it create a claim of entitlement to specific attributes once a procedure h a s been established, such as unbiased investigators or access to grievance forms. See R a m ir e z v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) ("Ramirez's claimed loss of a liberty in te re st in the processing of his appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement to a specific prison grievance procedure.") (citing Mann, 8 5 5 F.2d at 640). A v e ry does not challenge any specific attributes of the prison's grievance procedure. In fact, Avery alleges that he prevailed in the grievance procedure and was granted the right to his medication. He complains instead that his grievance procedure was inadequate b e c au s e the defendants eventually discontinued his medication after he was granted the right to it, and that filing a second grievance would be futile because the defendants will act sim ilarly if he is again granted the right to his medication. That prediction, however, is p u re ly speculative: the outcome of a second grievance concerning the defendants' eventual r e v o c a tio n of Avery's medication, as well as the enforcement of any determination in A v e ry's favor, are unknown. Avery must exhaust all available administrative remedies before bringing a claim in f e d e ra l court. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison c o n d itio n s under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are a v a ilab le are exhausted."); see also Booth v. Churner, 532 U.S. 731, 741 (2001) ("Congress h a s mandated exhaustion . . ., regardless of the relief offered through administrative p ro c e d u re s." ); Porter v. Nussel, 534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion -5-

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re q u ire m e n t applies to all inmate suits about prison life, whether they involve general c irc u m s ta n c es or particular episodes, and whether they allege excessive force or some other w ro n g " ). Avery alleges only that he filed a prison grievance seeking the return of his m e d ic a tio n , which was granted. (Dkt. #1 at II, 21). He did not file a subsequent grievance s e e k in g to compel the defendants' compliance with the initial grievance determination. (Id. a t II, 36). Additionally, although Avery alleges that the defendants' eventual non-

c o m p l ia n c e with the grievance determination "hinder[es] further exhaustion" (id. at 36), he d o e s not allege that "no pertinent relief can be obtained through the [grievance] process." B ro w n v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Therefore, the Court will dismiss w ith o u t prejudice Avery's claim of non-compliance with the initial grievance determination f o r failure to exhaust administrative remedies. See, e.g., See Wyatt v. Terhune, 315 F.3d 1 1 0 8 , 1120 (9th Cir. 2003) ("If the district court concludes that the prisoner has not e x h a u ste d nonjudicial remedies, the proper remedy is dismissal of the claim without p rejud ice."). V. C la im s for Which an Answer Will Be Required A. E ig h th Amendment

P la in tif f alleges that Nangalama, Menon, and Adams violated his rights under the E ig h th Amendment. T h e Eighth Amendment prohibits the imposition of cruel and unusual punishments a n d "embodies broad and idealistic concepts of dignity, civilized standards, humanity and d e c en c y." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation marks and citation o m itte d ). There are two requirements for stating a claim against a prison official under the E ig h th Amendment: (1) an objective requirement that "the deprivation alleged . . . be s u f f ic ie n tly serious," Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks a n d citation omitted), and (2) a subjective requirement that the "prison official [] have a s u f f ic ie n tly culpable state of mind." Id. The objective requirement is met where the "prison o ff ic ial's act or omission [] result[s] in the denial of the minimal civilized measure of life's -6-

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n e c es s itie s." Id. (internal quotation marks and citation omitted). The subjective requirement is met where the prison official acts with "deliberate indifference to inmate health or safety." Id . (internal quotation marks and citation omitted). A prison official acts with deliberate in d if f e re n c e when he "knows of and disregards an excessive risk to inmate health or safety; th e official must both be aware of facts from which the inference could be drawn that a s u b s ta n tia l risk of serious harm exists, and he must also draw the inference." Id. at 837. D e lib e ra te indifference is a higher standard than negligence or lack of ordinary due care. Id. a t 835; see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims o f "indifference," "negligence," or "medical malpractice" do not support a claim under § 1 9 8 3 ). Deliberate indifference in the medical context may be shown by a purposeful act or f a ilu re to respond to a prisoner's pain or possible medical need and harm caused by the in d if f e re n c e . Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate indifference m ay also be shown when a prison official intentionally denies or interferes with a prisoner's m e d ic a l treatment, id., but "[a] difference of opinion does not amount to deliberate in d if f ere n c e to serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A n d a mere delay in medical care is insufficient to state a claim for deliberate indifference. S e e Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The in d if f ere n c e must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U .S . at 105-06. A v e ry alleges his medical needs are serious. Examples of serious medical needs in c lu d e "[t]he existence of an injury that a reasonable doctor or patient would find important a n d worthy of comment or treatment; the presence of a medical condition that significantly a f f e c ts an individual's daily activities; or the existence of chronic and substantial pain." M c G u c k in v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). Here, Avery states that he was p re sc rib e d Fentanyl, in the form of a transdermal patch, by prison medical officials for pain m a n a g em e n t in connection with a degenerative disability. (Dkt. #1 at 9). Thus, at least one

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d o c to r found Avery's condition worthy of treatment, which is sufficient to establish a serious m e d ic a l need. T h e next question is whether Adams, Nangalama, and Menon were deliberately in d if f ere n t this medical need. Avery alleges that after he was transferred to a new housing lo c a tio n , Adams, a nurse, tried to convince Nangalama to stop providing Avery medication b e c au s e Avery's patch had come off, which Adams believed meant that Avery was selling h is medication to other inmates. (Id. at 15-16). Avery, however, tried to explain to A d a m s -- to no avail--that the only reason his patch fell off was because "the adhesive does n o t stay on well," and Avery had "already clarified this problem with [] Doctor McAlpine." (Id . at 11). N o n e th e l e ss , Adams reported to Nangalama that Avery was "abusing [his] m e d ic a tio n ," and Nangalama discontinued Avery's medication. (Id. at 15). Avery

c h a lle n g e d that decision and Nangalama "started one by one creating reasons each time [ A v e ry] contradicted" Nangalama's reasons, such as "medical received a complaint per [ ] A d a m s . . . that an inmate claimed [Avery] sold [his] patches" and Avery "was observed p la yin g basketball." (Id. at 15-17). Avery alleges that Adams and Nangalama conspired to d e p riv e him of his medication in retaliation for his explanations of why his patch fell off. (Id . at 18). A v e ry appealed Nangalama's decision through the prison's internal administrative g riev an ce process. (Dkt. #1 at 21). The appeal was granted "on 1st level," and Avery's m e d ic a tio n was "reordered and issued 3 times." (Id. at 21-22). But then Menon, a prison m e d ica l doctor, again discontinued Avery's medication because Menon "was instructed to d o this or took some type of preantisipated [sic] interest in [Avery's] file and medications." (Id . at 22). T h e se allegations, viewed in the light most favorable to Avery, are sufficient for sc re e n in g purposes to support a claim that prison officials intentionally interfered with A v e ry's previously prescribed medical treatment. See Estelle, 429 U.S. at 105; Jett, 439 F.3d a t 1069 ("Indifference `may appear when prison officials deny, delay or intentionally -8-

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in te rf e re with medical treatment, or it may be shown by the way in which prison physicians p ro v id e medical care.'") (quoting Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1 9 8 8 )) . Avery does not allege a mere difference of opinion, see Sanchez, 891 F.2d at 242 (d if f ere n c e of opinion does not amount to deliberate indifference), or general disagreement w ith his medical treatment, see Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) ("[S]tate p ris o n authorities have wide discretion regarding the nature and extent of medical tre a tm e n t."), but that Adams, Nangalama, and Menon conspired to deny Avery his prescribed pain medication because Avery challenged their authority, despite knowing that Avery would s u f f er pain and perhaps further injury. (Dkt. #1 at 28). That allegation is sufficient for sc re e n in g purposes to state a claim for relief against the defendants under the Eighth A m e n d m e n t .1 V I. W a r n in g s A. A d d r e s s Changes

A v e ry must file and serve a notice of a change of address in accordance with Rule 831 8 2 (f ) and 83-183(b) of the Local Rules of Civil Procedure. Avery must not include a m o tio n for other relief with a notice of change of address. Failure to comply may result in d is m is s a l of this action. B. Copies

A v e ry must submit an additional copy of every filing for use by the Court. See LRCiv 5 -1 3 3 (d )(2 ). Failure to comply may result in the filing being stricken without further notice to Plaintiff. C. Possible Dismissal

I f Avery fails to timely comply with every provision of this order, including these w a rn in g s , the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

W h ile Count 3 of Avery's Complaint asserts a second claim for relief under the E ig h th Amendment, it merely reiterates some of the allegations raised in support of Count 2 . Thus, the Court will dismiss Count 3 as redundant; it does not state a separate claim for re lie f . -9-

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1 2 6 0 -6 1 (a district court may dismiss an action for failure to comply with any order of the C o u r t) . A c c o r d in g l y , I T IS HEREBY ORDERED THAT: (1 ) P la in tif f 's Application to Proceed In Forma Pauperis is granted pursuant to

2 8 U.S.C. § 1915(a)(1). (2 ) P la in tif f is obligated to pay the statutory filing fee of $350.00 for this action

p u rsu a n t to 28 U.S.C. § 1915(b)(1). All fees must be collected and paid in accordance with th is Court's order to the California Department of Corrections, which will be filed co n cu rren tly with this order. (3 ) C o m p la in t. (4) c la im . (5 ) The Clerk of the Court shall send Plaintiff a service packet including the Counts 1, 3, 4, and 5 are dismissed without prejudice for failure to state a Defendants Adams, Menon, and Nangalama shall answer Count 2 of the

C o m p la in t (Dkt. #1), this order, a Notice of Submission of Documents form, an instruction s h e e t, and copies of summons and USM-285 forms for Defendants Nangalama, Menon, and A dam s. (6 ) W ith in 30 days of the date of filing of this order, Plaintiff must complete and

re tu rn to the Clerk of the Court the Notice of Submission of Documents. Plaintiff shall su b m it with the Notice of Submission of Documents a copy of the following for each D e f en d a n t: a copy of the Complaint, a copy of this order, a completed summons, and a c o m p le te d USM-285. (7) P la in tif f shall not attempt service on Defendants and must not request waiver

o f service from the Defendants. Once the Clerk of the Court has received the Notice of S u b m is s io n of Documents and the required documents from Plaintiff, the Court will direct th e United States Marshal to seek waiver of service from each Defendant or serve each D e f e n d a n t. - 10 -

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(8 )

I f Plaintiff fails to return the Notice of Submission of Documents and the

r e q u ir e d documents within 30 days of the date of filing of this order, the Clerk of Court s h a ll, without further notice, enter a judgment of dismissal of this action without p r e ju d ic e . See Fed. R. Civ. P. 41(b).

D A T E D this 9th day of April, 2010.

/s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation

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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 1 DATED: ___________________________________ Plaintiff Plaintiff hereby submits the following documents in compliance with the court's order filed ______________: ______ ______ ______ completed summons form completed USM-285 forms copies of the _______________ Complaint/Amended Complaint UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 2:08-cv-02873-MSB ) AVERY, ) ) Plaintiff, NOTICE OF SUBMISSION OF ) DOCUMENTS ) vs. ) ) NANGALAMA, et al., ) ) Defendant. _________________________________ )