Gibson v. Chief Medical Officer of California Department of Corrections et al

Filing 19

ORDER signed by Circuit Judge Marsha S. Berzon on 7/8/2010 ORDERING that Plaintiff's 18 Third Amended Complaint is DISMISSED for failure to state a claim. Plaintiff is granted leave to amend his complaint and may file a Fourth Amended Complaint in compliance with this Order no later than 30 days from the date this Order is filed. The Clerk of the Court shall send Plaintiff a Prisoner Complaint form along with this Order. If Plaintiff fails to file an amended complaint or a Notice of Dismissal within 30 days from the date this Order is filed, the Clerk of the Court shall, without further notice, enter a judgment of dismissal stating that the dismissal counts as a "strike under 28 USC 1915(g). (Duong, D)

( P C ) Gibson v. Chief Medical Officer of California Department of Corrections et al

D o c . 19

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 ROBERT D. GIBSON, ) ) Plaintiff, ) ) vs. ) ) C H IE F MEDICAL OFFICER, C.D.C.R.,) e t al., ) ) Defendants. ) ) C a s e No. 2:09-cv-00230-MSB ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

P lain tiff Robert D. Gibson, who is currently confined in the Salinas Valley State P r is o n in Soledad, CA, has filed an amended pro se civil rights Complaint under 42 U.S.C. § 1983 (Dkt. # 18) pursuant to the Court's April 9, 2010 order dismissing Gibson's Second A m e n d e d Complaint for failure to state a claim upon which relief may be granted and g ra n tin g him leave to amend his complaint (Dkt. #14). After screening the complaint p u rsu a n t to 28 U.S.C. § 1915A, to the extent discussed below, the Court will dismiss with p re ju d ic e the Third Amended Complaint (Dkt. #18) for failure to state a claim upon which re lie f may be granted. I. S ta tu to r y Screening of Prisoner 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

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c la im s that are legally frivolous or malicious, fails to state a claim upon which relief may be g ra n te d , or seeks monetary relief from a defendant who is immune from such relief. Id. at § 1915A(b)(1), (2). II. T h ir d Amended Complaint In his Third Amended Complaint,1 Gibson presents four causes of action: 1) that 42 U .S .C . §1997e is unconstitutional because it is a Bill of Attainder, violates the First A m e n d m e n t because it blocks access to the courts, violates his Seventh Amendment right to a civil trial, and violates the Ninth Amendment; 2) that California Penal Code §§ 2600-2601 is unlawfully applied to him ex post facto because it was enacted after he was sentenced;2 3) th a t the defendants have violated the Eighth Amendment because they failed to provide him tre a tm e n t for Hepatitis C; and 4) that the prison's poor food diet and unsanitary conditions v io la te the Eighth Amendment. (Dkt. #18 at 27­28). These causes of action are identical to the causes of action presented in Gibson's Second Amended Complaint. (Dkt. #11 at 1 8 ­ 2 2 ). The Third Amended Complaint includes additional defendants and factual

a l l e g a t io n s . G ib s o n names the following parties as defendants: (1) Arnold Schwarzenegger, G o v e rn o r of the State of California (Dkt. #18 at 2­3); (2) Robin Dezember, the Director of th e Division of Correctional Health Care Services of the California Department of C o rre c tio n s and Rehabilitation (id. at 3); (3) the Chief Dietitian of the California Department o f Corrections (id.); (4) Susan Lapsey, Director of the Office of Adminstrative Law (id. at 4 ); (5) Kathleen Eddy, Senior Counsel of the Office of Administrative Law (id.); (6) Warden

G ib so n amended his complaint as a matter of course under FED. R. CIV. P. 15(a)(1) (D k t. #5), and the Court granted his motion to file a Second Amended Complaint under FED. R . CIV. P. 15(a)(2) before screening the complaint under 28 U.S.C. § 1915A. (Dkt. #s 11, 1 4 ). C a lif o rn ia Penal Code § 2600 provides that "[a] person sentenced to imprisonment in a state prison may during that period part of confinement be deprived of such rights, and o n ly such rights, as is reasonably related to legitimate penological interests." California P e n a l Code § 2601 specifics certain civil rights that prisoners retain during their term of im p ri s o n m e n t. -22

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o f the Salinas Valley State Prison (id. at 3, 4); (7) Chief Medical Officer of the Salinas V a lle y State Prison (id.); (8) Food Manager of the Salinas Valley State Prison (id. at 5); (9) E d m u n d G. Brown, Attorney General of California (id. at 6); (10) Trace Maiorino, Deputy A tto rn e y General of California (id.); (11) Kellis M. Hammond, Deputy Attorney General of C a lif o rn ia (id.); and (12) William Cashdollar, Deputy Attorney General of California (id. at 7 ). Only Defendants (1)­(3) and (8)­(12) were named in the Second Amended Complaint. (D k t. #11 at 2­5). G ib s o n alleges that he has Hepatitis C genotype 1b, which is an infectious disease a f f e c t in g the liver. (Dkt. #18 at 8­9). According to Gibson, the Hepatitus C virus "is r e sp o n s ib l e for nearly 70 percent of chronic liver disease and 50 percent of liver cirrhosis, e n d -s ta g e disease, and eventually cancer of the liver." (Id. at 8). Gibson alleges that "[i]f [ a ] patient is infected with genotype 1, then he should be offered a liver biopsy," and "[o]nce [ th e ] patient is determined to have chronic hepatitis, then he should be [treated] with a c o m b i n a tio n of two drugs"--"Pegylated interferon and Ribavirin for 48 weeks for genotype 1 [ b ]." (Id. at 9). G ib s o n states that he "has received several biops[ies] of [his] liver," and that, as of M a rc h 16, 2010, the defendants began treating him with Pegylated interferon and ribavirin. (Id .). "[B]ut," according to Gibson, "the delay has been too great and injury has occurred." (Id .). Specifically, Gibson alleges that "[t]he defendant's scheme of years of inaction and d e la y has guaranteed that any treatment will fail." (Id. at 12). Gibson then points to a S e p te m b e r 22, 2008 memorandum from Terry Hill, M.D., Chief Executive Officer, Medical S erv ices, California Prison Health Care Receivership, alleging that "[t]he Defendant's p o lic ie s to delay and to deny care have been intentionally promulgated and [executed] for f in a n c ial reasons in complete disregard for the medical needs of [p]risoners infected with [ H e p a titis C]." (Id.). G i b s o n also alleges that "the Defendants are now engaged in conditioning [his] m e d ica l treatment upon a dress code," such that "failure to comply with [the] dress code is g ro u n d s for the . . . cancell[ation] [of] medical appointments and treatment." (Id. at 10). -3-

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S p e c if ica lly, Gibson alleges that he "attempted to go to a medical appointment . . . . [and] did n o t have a pair of cheap dirty State issued tennis shoes, [but] instead . . . had on a pair of n e w , clean white, (personal bought) tennis shoes on [and] his . . . appointment was c a n ce lle d ." (Id.). Additionally, Gibson alleges that the defendants have "[promulgated] p o lic ie s [ ] and practices that are design[ed] to cause [his] medical treatment to fail [by] [ a ]llo w in g guard staff to interrupt medical consultations, to yell and scream at [him] during m e d ica l visits while [he] is under the influence of powerful anti-viral drugs," causing him " a ) fatigue and weakness[,] b) headaches[,] c) body, muscle, and joint pain, d) fever, e) irrita b ility, anxiety, and nervousness[,] f) low white blood cell count[, and] g) depression." (Id . at 11). Specifically, Gibson alleges that "[t]he guards in the hospital facility. . . are tra in e d to yell out orders . . . at sick patients to anger or stress [them], for things like, `Pull u p your pants,' `No wearing of hats in the building,' [and] `Hands behind your back[.]'" (Id. at 14). In addition, Gibson alleges that the prison food is unsanitary and "contribut[es] to [ h is ] bad health." (Id. at 15). According to Gibson, the prison food is sometimes stored o u td o o rs and left uncovered, and is "sodium laced" and "lacks any nutritional value." (Id.). A d d itio n a lly, Gibson alleges that the prison "meat is routinely burnt or spoiled" (id.), food i te m s are consistently missing from his daily "brown bag" lunch, he was once "made very s ic k from rotten eggs," he once found insect remains in his cereal, and he once received o ra n g e sherbet that "was clearly spoiled" and "would have caused [him] food poisoning" if h e had consumed it (id. at 16). Furthermore, Gibson alleges that his medical treatment " re q u ire s a high protein and caloric diet, not [the] mush and gruel[] of every type and d e sc rip tio n [ ]" that he receives in prison, and, "without an adequate diet[,] the drugs may not w o rk ." (Id. at 17). F in a lly, Gibson alleges that (1) the defendants were negligent and committed m a lp ra c tice when they performed a liver biopsy procedure on him that was "incompetent" a n d "botched" (id. at 13); (2) the California Attorney General's office engaged in a "[p]attern o f [r]acketeering [a]ctivity" by using false affidavits and tampering with witnesses in three -4-

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e a rlie r civil rights cases Gibson filed (id. at 18­19); (3) Cal. Penal Code §§ 2600­2601 are u n law fu lly applied ex post facto to him because they were enacted in 1994, several years a f te r he had been sentenced (id. at 23­24); and (4) 42 U.S.C. § 1997e is an unlawful bill of a tta in d e r and violates the First, Seventh, and Ninth Amendments by making prison grievance p r o c e d u r e s a prerequisite for filing a lawsuit and making litigation difficult for prisoners, d e s p ite "full knowledge of the tyrannical acts of [s]tate [o]fficials" (id. at 20­21). These a lle g a tio n s are mostly identical to the allegations contained in the Second Amended C o m p la in t. (Dkt. #11 at 10­12, 14­18). The only new allegations regarding issues (3) and (4 ) are a statement that Cal. Penal Code §§ 2600­2601 "and the many new prison regulations it [has] spawn[ed] . . . `[h]ave created a sufficient risk of increasing the plaintiff's current s e n te n c e or punishment'" (Dkt. #18 at 24), a citation to a Harvard Law Review article stating th a t 42 U.S.C. § 1997(e) makes it difficult for prisoners to bring lawsuits (id. at 22), a citation to other prisoner's declarations of their problems with prison grievance procedures (id.), and a lle g a tio n s that the Office of Administrative Law violated his equal protection rights by " r e f u s [ in g ] to order the repeal" of parts of the California Code of Regulations (id. at 25­26). III. D is c u s s io n 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 U.S. Constitution. Buckley v. City of R e d d in g , 66 F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th C ir. 1984). To state a claim for relief under § 1983, a plaintiff must allege that he suffered a specific injury as a result of a defendant's specific conduct and show an affirmative link b e tw e e n the injury and that defendant's conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (19 7 6 ). 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 -5-

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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 pro se litigant is entitled to an opportunity to amend his complaint. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en b a n c ). B. S im ila r Allegations

T h e allegations in Gibson's Third Amended Complaint concerning the c o n stitu tio n a lity of 42 U.S.C. § 1997e, the application of Cal. Penal Code §§ 2600­2601, and the "racketeering activities" of certain individuals in the California Attorney General's O f f ic e , are substantially similar to the allegations contained in the Second Amended C o m p la in t. The allegations suffer from the same defects identified in the Court's April 9, 2 0 1 0 order: G ib so n alleges that 42 U.S.C. § 1997e violates the First, Seventh, and Ninth A m e n d m e n ts and is an unlawful Bill of Attainder. According to Gibson, § 1 9 9 7 e has made it impossible for him to find legal counsel and its purpose is " to punish incarcerated person[s]." (Dkt. #11 at 14). To state a claim of d e n ia l of access to the courts, a prisoner "must identify a `nonfrivolous,' `a rg u a b le' underlying claim" that the prisoner has been or will be unable to p u rs u e properly because the defendant's actions have denied the prisoner m e a n in g f u l access to the courts. See, e.g., Christopher v. Harbury, 536 U.S. 4 0 3 , 415 (2002) (quoting Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996)). H e re , Gibson alleges only a "[p]attern of [r]acketeering [a]ctivity" by certain a tto rn e ys in the California Attorney General's Office in other civil actions he h a s pursued in court, but not that he has in fact been denied access to the co u rts. Gibson also fails to identify any legal basis underlying his conclusory asse rtio n s regarding the constitutionality of 42 U.S.C. § 1997e. He therefore f a ils to state a claim upon which relief can be granted against the California A tto r n e y General defendants. ....

25 26 27 28 G ib so n claims that Cal. Penal Code §§ 2600-2601 violate the U.S. C o n stitu tio n because they are applied to him ex post facto. The U.S. C o n s titu tio n provides that "No State shall . . . pass any . . . ex post facto Law." U .S . Const. art. I, § 10. The Ex Post Facto Clause is violated if: (1) state re g u la tio n s have been applied retroactively to a defendant; and (2) the new re g u la tio n s have created a "sufficient risk" of increasing the punishment a tta c h e d to the defendant's crimes. Himes v. Thompson, 336 F.3d 848, 854 -6-

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( 9 th Cir. 2003). In order to violate the clause, the law in question must e ss e n tia lly alter "the definition of criminal conduct" or increase the " p u n is h m e n t for the crime." Lynce v. Mathis, 519 U.S. 433, 442 (1997). H e re , Gibson alleges that prison regulations regarding "medical care, f o o d , clothing and other living conditions or housing needs" are stricter now th an at the time he was sentenced. (Dkt. #11 at 16). He does not, however, a lleg e that the new regulations have created a sufficient risk of increasing his p u n is h m e n t. He therefore fails to state a claim upon which relief can be g r a n te d . D k t. #14 at 9­10. A lth o u g h Gibson alleges for the first time in his Third Amended Complaint that Cal. P e n a l Code §§ 2600­2601, which govern certain prisoner rights, "[h]ave created a sufficient ris k of increasing the plaintiff's current sentence or punishment," Gibson fails to explain how th e application of Cal. Penal Code §§ 2600­2601 creates any risk of increasing his term of im p ris o n m e n t and thus fails to state a claim upon which relief can be granted. See Iqbal, 129 S . Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere c o n c lu so ry statements, do not suffice."); see also Cal. Dep't of Corrections v. Morales, 514 U .S . 499, 506 n. 3 (1995) ("[T]he focus of the ex post facto inquiry is not on whether a le g is la tiv e change produces some ambiguous sort of `disadvantage,' . . . but on whether any s u c h change alters the definition of criminal conduct or increases the penalty by which a crim e is punishable."). A d d itio n a lly, although the complaint includes citations to a Harvard Law Review a rtic le that 42 U.S.C. § 1997(e) makes it difficult for prisoners to file lawsuits and to other p ris o n e r's declarations concerning their problems with prison grievance procedures, Gibson f a ils to state a claim as he fails to allege that he suffered any specific injury as a result of any d e f e n d a n t's specific conduct. See Lewis v. Casey, 518 U.S. 343, 351­52 (1996); Lujan v. D e fen d e rs of Wildlife, 504 U.S. 555, 574-78 (generalized grievances about the proper a p p lic a tio n of laws does not support standing). Moreover, a prisoner does not have a p ro te c te d liberty interest in prison grievance procedures. See Mann v. Adams, 855 F.2d 639, 6 4 0 (9th Cir. 1988). T h e allegations in Gibson's Third Amended Complaint regarding his "botched" liver b io p s y are also identical to, and suffer from the same defects as, the allegations in the Second -7-

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A m e n d e d Complaint, as identified by the Court in its April 9, 2010 order dismissing the c o m p lain t: G ib so n also alleges that a "botched" biopsy was performed in "total disregard f o r [his] safety and health" and "caus[ed] [him] unnecessary pain and delay in h is treatment." ([Dkt. #11] at 12). He does not, however, explain how his b io p sy was "botched" or allege facts sufficient to support his conclusory a lle g a t io n s concerning the harm caused by the biopsy or the defendants' a lleg e d deliberate indifference to his medical needs. Gibson therefore fails to sta te a claim under the Eighth Amendment based on medical treatment. D k t. #14 at 8. As the Court noted in its April 9 order, "claims of `indifference,' `negligence,' o r `medical malpractice' do not constitute deliberate indifference." (Id.) (quoting Broughton v . Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)). Thus, Gibson once more fails to state a claim. F i n a l l y, to the extent that Gibson claims for the first time in his Third Amended C o m p la in t that the Office of Administrative Law violated his equal protection rights by " re f u s[ in g ] to order the repeal" of certain provisions of the California Code of Regulations (D k t. #18 at 25­26), he fails to allege that he was intentionally discriminated against based u p o n membership in a protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th C ir. 1998) ("To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection C lau se of the Fourteenth Amendment a plaintiff must show that the defendants acted with a n intent or purpose to discriminate against the plaintiff based upon membership in a p ro te c te d class."). Conclusory statements of unequal treatment are insufficient to state a c la im . Iqbal, 129 S.Ct. at 1949. Thus, Gibson fails to state a claim upon which relief may b e granted. C. E ig h th Amendment

G ib s o n claims that the defendants violated the Eighth Amendment bar against cruel a n d unusual punishment. Specifically, Gibson alleges that the defendants failed to provide h im timely medical treatment and that the prison food is unsanitary. (Dkt. # 18 at 10­12, 1 4 ­ 1 7 ). To state a claim against a prison official under the Eighth Amendment a plaintiff must e s ta b l is h that: (1) "the deprivation alleged . . . [is] sufficiently serious" under an objective -8-

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s ta n d a rd , and (2) the "prison official [] ha[d] a sufficiently culpable state of mind" under a s u b je c tiv e standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks a n d citation omitted). The objective requirement is met where the "prison official's act or o m is s io n [] result[s] in the denial of the minimal civilized measure of life's necessities." Id. (in te rn a l quotation marks and citation omitted). The subjective requirement is met where the p ris o n official acts with "deliberate indifference to inmate health or safety." Id. (internal q u o ta tio n marks and citation omitted). A prison official acts with deliberate indifference w h e n he "knows of and disregards an excessive risk to inmate health or safety; the official m u s t both be aware of facts from which the inference could be drawn that a substantial risk o f serious harm exists, and he must also draw the inference." Id. at 837. Furthermore, d e lib e ra te indifference is a higher standard than negligence or lack of ordinary due care. Id. a t 835. i. Prison Food G ib s o n alleges that the food at the Salinas Valley State Prison is "delivered in u n co v ere d pans carried outdoor in the rain," "sodium-laced," and "routinely prepared very b a d ly." (Dkt. #18 at 15). Gibson also alleges that his "brown bag" lunches are constantly m iss in g items. (Id. at 16). As explained by the Court in its previous order dismissing G ib so n 's Second Amended Complaint, however, "[t]he Eighth Amendment requires only th a t prisoners receive food that is adequate to maintain health; it need not be tasty or a e sth e tic a lly pleasing." LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). Gibson does n o t specifically allege that his health has been negatively affected as a result of the missing i t e m s in his "brown bag" lunches, the way the prison food is served, or its allegedly high s o d iu m content. To the extent that Gibson does allege that the prison food is "contributing to [his] bad health" (Dkt. #18 at 15), this allegation appears to relate to Gibson's allegation th a t the medical treatment for his Hepatitis C infection requires a "high protein and caloric d i e t," not the normal prison diet (id. at 17), to be effective, and will be discussed in the s e c tio n below.

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G ib s o n also alleges that he once became sick from eating rotten eggs, once found in s e c t remains in his cereal, and once received spoiled orange sherbet (that he did not c o n su m e ). (Dkt. #18 at 16). But "[t]he fact that the food occasionally contains foreign o b je c ts or sometimes is served cold, while unpleasant, does not amount to a constitutional d e p riv a tio n ." LeMaire, 12 F.3d at 1456 (internal quotation marks omitted). Gibson's a lle g a tio n s do not establish a "sufficiently serious" deprivation of "the minimal civilized m e a su re of life's necessities." Farmer, 511 U.S. at 834 (internal quotation marks omitted); c f. Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) ("[S]ubjection of a p r is o n e r to lack of sanitation that is severe or prolonged can constitute an infliction of pain w ith in the meaning of the Eighth Amendment.") (emphasis added). Furthermore, Gibson d o e s not identify what facts the defendants knew about spoiled or contaminated food or w h e th e r they deliberately ignored a risk that the food was inadequate to maintain his health. S e e Farmer, 511 U.S. at 834. Thus, Gibson fails to state a claim upon which relief can be g r a n te d . ii. Medical Treatment A s explained by the Court in its previous order dismissing Gibson's Second Amended C o m p lain t, a prison official violates the Eighth Amendment when he acts with "deliberate in d if f ere n c e to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1 9 7 6 ). In his Third Amended Complaint, Gibson alleges that he has Hepatitis C, surely a se rio u s medical need.3 The question then, as with the Second Amended Complaint, is

T o establish a "serious medical need," a plaintiff must "demonstrat[e] that failure to tre a t [his or her] condition could result in further significant injury or the unnecessary and w a n to n infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal q u o t a tio n marks omitted). Gibson alleges only that "many experts recommend drug tre a tm e n t," and that "[o]nce a patient is determined to have chronic hepatitis, then he should b e treated with a combination of two drugs," Pegylated interferon and ribavirin. (Dkt. #18 a t 9) (emphasis added). Although a Hepatitis C infection can "quite obviously cause serious h e a lth problems," Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007), Gibson does n o t allege that failure to treat his Hepatitis C infection with Pegylated interferon and ribavirin " c o u ld result in further significant injury or the unnecessary and wanton infliction of pain." J e tt, 439 F.3d at 1096. Nor does he allege that he has been diagnosed as requiring treatment - 10 -

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w h e th e r the allegations in the Third Amended Complaint meet the requisite standard for d e lib e ra te indifference. T o establish deliberate indifference a plaintiff must show both "a [defendant's] p u rp o s e f u l act or failure to respond to a prisoner's pain or possible medical need and . . . h a r m caused by the indifference." Jett, 439 F.3d at 1097. Deliberate indifference is a su b jec tiv e standard: "the official must both be aware of facts from which the inference could b e drawn that a substantial risk of serious harm exists, and he must also draw the inference." F a r m e r, 511 U.S. at 834. Thus, an "official's failure to alleviate a significant risk that he s h o u ld have perceived but did not, . . . cannot . . . be condemned as the infliction of p u n is h m e n t." Id. at 838; see id. at 835­36 & n.4 (equating deliberate indifference with rec k less disregard). " P ris o n officials are deliberately indifferent to a prisoner's serious medical needs w h e n they `deny, delay or intentionally interfere with medical treatment.'" Lopez, 203 F.3d a t 1131 (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). "[T]o p r e v a il on a claim involving choices between alternative courses of treatment, a prisoner m u st show that the chosen course of treatment `was medically unacceptable under the circu m stan ce s,' and was chosen `in conscious disregard of an excessive risk to the prisoner's h e a lt h . ' " Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (quoting Jackson v. M c I n to s h , 90 F.3d 330, 332 (9th Cir. 1996)); see Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1 9 8 9 ) (mere disagreement with treatment does not support a claim of deliberate ind iffe ren ce ). H e re , Gibson alleges that "[i]f [a] patient is infected with genotype 1[b], then he s h o u ld be offered a liver biopsy," that he has Hepatitis C genotype 1b, and "[o]nce [the] p a tie n t is determined to have chronic hepatitis, then he should be [treated] with a c o m b i n a tio n of two drugs"--"Pegylated interferon and Ribavirin for 48 weeks for genotype f o r his infection. Nonetheless, as Gibson also alleges that he is now being treated with P e g yla te d interferon and ribavirin, the Court will assume that he has been diagnosed as re q u irin g such treatment, and that failure to treat Gibson with such medication could result in significant injury. - 11 -

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1 [ b ]." (Dkt. #18 at 9). Gibson acknowledges that he received multiple liver biopsies and is n o w being treated with Pegylated interferon and ribavirin. (Id.). Nonetheless, he alleges that " [ t]h e defendant's scheme of years of inaction and delay has guaranteed that any treatment w ill fail." (Id. at 12). First, Gibson does not allege that he had chronic hepatitis--or that the defendants k n e w or should have known, and deliberately disregarded, that he had chronic h e p a titis -- b e f o re the defendants began treating him with a combination of Pegylated in te rf e ro n and ribavirin. See generally Jett, 439 F.3d at 1096 ("[T]he plaintiff must show . . . . (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and ( b ) harm caused by the indifference."). Second, Gibson does not allege that the defendants' d e la y in treating him with Pegylated interferon and ribavirin was "medically unacceptable" a n d done "in conscious disregard of an excessive risk to [his] health." 4 Toguchi, 391 F.3d a t 1058. Thus, Gibson fails to state a claim under the Eighth Amendment for delay in his m e d ica l treatment.5

G ib s o n states in his Third Amended Complaint that "[i]t's allege[d] that the medical tr e a tm e n t now being received is medically unacceptable," citing the Court's April 9, 2010 o rd e r. (Dkt. #18 at 12) (emphasis added). As previously discussed, "[t]hreadbare recitals o f the elements of a cause of action, supported by mere conclusory statements, do not s u f f ic e " to state a claim. Iqbal, 129 S. Ct. at 1949. Additionally, elsewhere in his Third A m e n d e d Complaint, Gibson states only that "[o]nce a patient is determined to have chronic [ H ]e p a titis [C genotype 1b], then he should be treated with . . . Pegylated interferon and [ r]ib a v irin ." Gibson states, however, that he is now being treated with Pegylated interferon an d ribavirink, and he does not advocate for any other course of treatment. (Dkt. #18 at 9). F u rth e rm o re , Gibson does not allege that the failure to treat a patient who is diagnosed with c h ro n ic Hepatitis C genotype 1b with Pegylated interferon and ribavirin is "medically u n a c c e p ta b le ." G ib s o n cites to a September 2008 memorandum from Terry Hill, M.D., Chief E x e c u tiv e Officer, Medical Services, California Prison Health Care Receivership, alleging th a t "[t]he Defendant's policies to delay and to deny care have been intentionally p ro m u lg a te d and [executed] for financial reasons in complete disregard for the medical needs o f [p]risoners infected with [Hepatitis C]." (Dkt. #18 at 9). The memorandum states that liv e r biopsies are required for prisoners with Hepatitis C genotype 1, "[r]estrictions based on a g e or the ALT level ha[ve] been removed from the exclusion criteria," and "[a] m u ltid is c ip lin a ry team will be responsible for continuity fo care, close laboratory monitoring - 12 5

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G ib s o n also alleges that "the Defendants are . . . engaged in conditioning [his] medical tre a tm e n t upon a dress code." (Dkt. #18 at 10). Specifically, Gibson alleges that "failure to c o m p l y with [the prison] dress code is grounds for the . . . cancell[ation] [of] medical a p p o in tm e n ts and treatment," and that one of his medical appointments was cancelled b e c au s e he "did not have a pair of cheap dirty State issued tennis shoes, [but] instead . . . had o n a pair of new, clean white, (personal bought) tennis shoes." (Id.). Gibson does not allege, h o w e v e r , that he suffered a specific injury as a result of the enforcement of the prison's dress c o d e and the cancellation of one of his medical appointments. See Rizzo, 423 U.S. at 377; J e tt, 439 F.3d at 1096. Additionally, Gibson does not allege that any of the defendants knew o r should have known, and deliberately disregarded, a substantial risk of serious harm as a resu lt of the enforcement of the prison's dress code and the cancellation of one of Gibson's m e d ic a l appointments. See Farmer, 511 U.S. at 834. Therefore, Gibson fails to state a c la im . F in a lly, Gibson alleges that his medical treatment "requires a high protein and caloric d iet, not [the] mush and gruel[] of every type and description[]" that he currently receives in p riso n ,6 and that "without an adequate diet[,] [his medical treatment] may not work." (Dkt. # 1 8 at 17). Deliberate indifference may be established by showing that prison officials in te n tio n a lly interfered with a prisoner's prescribed medical treatment. See Estelle, 429 U.S. a t 105. Gibson fails to allege, however, that any of the defendants knew or should have k n o w n , and deliberately disregarded, a substantial risk of serious harm as a result of his

o f inmate-patients on treatment, and care coordination with mental health, transplant, s p e c ia lis ts , peer educators, and other disciplines involved in the inmate-patient's care." A lth o u g h the memorandum references removing certain "former recommendations" c o n c ern in g the "exclusion criteria," Gibson fails to allege that he was denied any medical tre a tm e n t under the former recommendations, that they delayed or interfered with his p re sc rib e d medical treatment, or that they were medically unacceptable under the c ir c u m s ta n c e s . D o c u m e n ts attached to the Third Amended Complaint indicate that Gibson has been p re sc rib e d "[a] 2500 calorie per day heart healthy diet [that is] compliant with [his] medical co n d itio n s of hypertension and hepatitis C." (Dkt. #18, Exh. December 8, 2009 Director's L e v e l Appeal). - 13 6

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c u rr e n t prison diet. See Farmer, 511 U.S. at 834. Accordingly, Gibson's allegations, viewed in the light most favorable to him, are not sufficient to support a finding that prison officials in ten tio n a lly interfered with his prescribed treatment. iii. Prison Environment G ib s o n alleges that the Warden and Chief Medical Officer at the prison have instituted p o lic ie s that allow guards to "yell and scream at [Gibson] during medical visits while [he] is under the influence of powerful anti-viral drugs," telling him to do things like, `Pull up yo u r pants,' `No wearing of hats in the building,' [and] `Hands behind your back[.]'" (Dkt. # 1 8 at 14). A prisoner's allegation that prison guards verbally abuse or make "disrespectful and a s s a u ltiv e comments" to him or her generally does not violate the Eighth Amendment. K e e n a n v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1987) (internal quotation marks omitted). In a d d itio n , although Gibson alleges that the prison guards' conduct "guarantees serious liver d a m a g e , cirrhosis of the liver, liver failure, [and] hepatocellular carcinoma (cancer)" (Dkt. # 1 8 at 11), he has not alleged that he has actually suffered any injury as a result of the g u a rd 's conduct or shown an affirmative link between an injury and the guard's conduct. R iz z o , 423 U.S. at 377. Moreover, Gibson does not identify what facts the defendants were a w a re of and whether they knew--and deliberately ignored--a risk that the guards' conduct n e g a t i v e l y affects his health. Farmer, 511 U.S. at 834. Therefore, Gibson fails to state a c la im . D. S u p er v iso r y Liability

G ib so n asserts several claims against "defendants" generally and defendants in their su p erv iso ry capacity. As the Court informed Gibson in its April 9, 2010 order, however, " [ t]h e inquiry into causation must be individualized and focus on the duties and re sp o n s ib ilitie s of each individual defendant whose acts or omissions are alleged to have c a u se d a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). For t h a t reason, there is no respondeat superior liability under 42 U.S.C. § 1983. See, e.g., P a lm e r v. Sanderson, 9 F.3d 1433, 1437­38 (9th Cir. 1993); Monell v. Dep't of Social - 14 -

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S e r v ic e s of City of New York, 436 U.S. 658, 692 (1978). A supervisory official may be liable u n d e r § 1983 only if he or she personally participated in the constitutional deprivation a lle g e d , or if there was a sufficient causal connection between the supervisor's conduct and th e deprivation. Redman v. County of San Diego, 942 F.2d 1435, 1446­47 (9th Cir. 1991); s e e Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000). Therefore, it is insufficient f o r Gibson to allege, for example, only that "[t]he Defendant's policies to delay and to deny c a re have been intentionally promulgated . . . in complete disregard for the medical needs of [ p ]ris o n e rs infected with [Hepatitis C]" (Dkt. #18 at 9) (emphasis added), and "[t]he delays a n d hinderence [sic] of the Defendants and their many predessors [sic] has cause[d] the P la in tif f irreparable harm and then the Defendants are now engaged in conditioning the P la in tif f [ 's ] medical treatment upon a dress code" (id. at 10) (emphasis added). Rather, if G ib so n chooses to amend his complaint once more, he must explain or describe the specific a c ts or omissions of each defendant in connection with each alleged constitutional d e p riv a tio n . IV . W a r n in g s A. A d d r e s s Changes

G ib s o n must file and serve a notice of a change of address in accordance with Rules 8 3 -1 8 2 (f) and 83-183(b) of the Local Rules of the United States District Court of the Eastern D is tric t of California. Gibson must not include a motion for relief with a notice of change o f address. Failure to comply these rules may result in dismissal of this action. See L.R. 831 8 3 (b). B. Copies

G ib s o n must submit an additional copy of every filing for use by the Court. See L R C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tic e to Gibson. C. P o s s ib le "Strike"

B e c a u s e the First Amended Complaint has been dismissed for failure to state a claim, if Gibson fails to file an amended complaint correcting the deficiencies identified in this - 15 -

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O rd e r, the dismissal will count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1 9 1 5 (g ). Under 28 U.S.C. § 1915, a prisoner may not bring a civil action in forma pauperis " if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any f a cility, brought an action or appeal in a court of the United States that was dismissed on the g ro u n d s that it was frivolous, malicious, or fails to state a claim upon which relief may be g ra n te d , unless a prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). D. P o s s ib le Dismissal

I f Gibson fails to timely comply with every provision of this Order, including these w a rn in g s , the Court may dismiss this case without further notice. Ferdik v. Bonzelet, 963 F .2 d 1258, 1260­61 (9th Cir. 1992) (a district court may dismiss a case for failure to comply w ith its orders). A c c o r d in g l y , IT IS HEREBY ORDERED THAT: (1) P l a i n tif f ' s Third Amended Complaint (Dkt. #18) is dismissed for failure to

sta te a claim. Plaintiff is granted leave to amend his complaint and may file a Fourth A m e n d e d Complaint in compliance with this Order no later than 30 days from the date this O rd e r is filed. If Plaintiff chooses to amend his complaint and the Court determines that the a m e n d e d complaint is frivolous, malicious, or fails to state a claim, it will be dismissed with p re ju d ic e pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2) and count as a "strike" under 2 8 U.S.C. § 1915(g). Alternatively, Plaintiff may elect to dismiss this action by filing a N o tic e of Dismissal pursuant to FED. R. CIV. P. 41(a)(1)(A) no later than 30 days from the d a te this Order is filed. Plaintiff is warned, however, that "if [he] previously dismissed any fe d era l-o r state-court action based on or including the same claim[s asserted in this action], [ th e ] notice of dismissal [will] operate[] as an adjudication on the merits." FED. R. CIV. P. 4 1 (a)(1)(B ). (2 ) T h e Clerk of the Court shall send Plaintiff a Prisoner Complaint form along

w ith this Order. - 16 -

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(3 )

If Plaintiff fails to file an amended complaint or a Notice of Dismissal within

3 0 days from the date this Order is filed, the Clerk of the Court shall, without further notice, e n te r a judgment of dismissal stating that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g).

D A T E D this 8th day of July, 2010.

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

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