Baker v. Perez et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 02/23/10 granting 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with the c ourt's CDC order filed concurrently herewith. Plaintiff's motion for appointment of counsel 4 is denied without prejudice. Claims against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May are dismissed with leave to amend. Within 30 days of service of this order, plaintiff may amend his complaint to state cognizable claims against these defendants. Plaintiff is not obliged to amend his complaint. The allegations in the pleading are sufficient a t least to state cognizable claims against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. The clerk of the court shall provide plaintiff a blank summons, copy of the pleading filed 10/05/09, 4 USM-285 forms and instruction sheet to be completed and returned within 30 days.. (Plummer, M)

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 vs. PEREZ, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On October 21, 2009, plaintiff also filed a motion to appoint counsel. 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). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 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 prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to ORDER MICHAEL BAKER, Plaintiff, No. 2:09-cv-2757 MCE KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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

make 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 has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable claim against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. See 28 U.S.C. § 1915A. For the reasons stated below, the court finds that the complaint does not state a cognizable claim against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May. The claims against those defendants are hereby dismissed with leave to amend. Plaintiff may proceed forthwith to serve defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina and pursue his claims against only those defendants, or he may delay serving any defendant and attempt to state a cognizable claim against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May. If plaintiff elects to attempt to amend his complaint to state a cognizable claim against any or all of the defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May, he has thirty days so to do. He is not obligated to amend his complaint. Plaintiff states that he suffers from nerve damage and has undergone disc replacement surgery both of which result in severe pain. He states that he has been prescribed gabapitin and tramadol for treatment. Plaintiff's claims involve failure to receive medication in a timely manner from prison medical staff at High Desert State Prison (HDSP). Plaintiff states that he did not receive medication at the appropriate times during several intervals from 2007 to 2009. From August 2007 to December 2007, plaintiff contends that he did not receive his medication several times from nurses. Though it is not entirely clear from the complaint, it appears that plaintiff received his medication two to four times a day. Plaintiff does not identify
2

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

the nurses who failed to bring the medication during this time period Between January 1, 2008, and July 10, 2008, plaintiff alleges that unnamed nurses did not bring him medication on 10 occasions, sometimes in the morning and sometimes at night. Plaintiff also provides a day by day account of a few months in January and February 2009, where he did not receive his prescription for Ensure and other medications, from unnamed defendants. Plaintiff also attempts to attach liability to supervising medical staff at HDSP without properly describing how they were involved. With respect to these alleged incidents of not receiving his medication, plaintiff provides general statements that just missing one prescription causes him pain, but provides no further details. These allegations do not rise to the level of deliberate indifference required to bring a claim under the Eighth Amendment and plaintiff has failed to identify the appropriate defendants for these claims. In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate 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). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4 (1992). A serious medical 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. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900
3

1 2 3 4 5 6 7 8 9 10 11 12 13 14

F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In Farmer v. Brennan, 511 U.S. 825 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842. The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

15 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 16 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 17 (1976). "A person `subjects' another to the deprivation of a constitutional right, within the 18 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 19 omits to perform an act which he is legally required to do that causes the deprivation of which 20 complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Moreover, supervisory personnel are generally not liable under § 1983 for the 22 actions of their employees under a theory of respondeat superior and, therefore, when a named 23 defendant holds a supervisorial position, the causal link between him and the claimed 24 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 25 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 26
4

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

941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). If plaintiff elects to proceed forthwith against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina, against whom he has stated a cognizable claim for relief, then within thirty days he must return materials for service of process enclosed herewith. In this event the court will construe plaintiff's election as consent to dismissal of all claims against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May without prejudice. Any amended complaint must show the federal court has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if plaintiff's allegations are true. It must contain a request for particular relief. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (noting that "nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b)"); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff's claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema
5

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

N.A., 534 U.S. 506, 514 (2002) ("Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim."); Fed. R. Civ. P. 8. Plaintiff must not include any preambles, introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, summaries, and the like. McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for violation of Rule 8 after warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that "firm application of the Federal Rules of Civil Procedure is fully warranted" in prisoner cases). The court (and defendant) should be able to read and understand plaintiff's pleading within minutes. McHenry, 84 F.3d at 1179-80. A long, rambling pleading including many defendants with unexplained, tenuous or implausible connection to the alleged constitutional injury, or joining a series of unrelated claims against many defendants, very likely will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing plaintiff's action pursuant to Fed. R. Civ. P. 41 for violation of these instructions. A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

6

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

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950. An amended complaint must be complete in itself without reference to any prior pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded. By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has evidentiary support for his allegations, and for violation of this rule the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. A prisoner may bring no § 1983 action until he has exhausted such administrative remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be presented on a CDC form 602 that asks simply that the prisoner "describe the problem" and "action requested." Therefore, this court ordinarily will review only claims against prison officials within the scope of the problem reported in a CDC form 602 or an interview or claims that were or should have been uncovered in the review promised by the department. Plaintiff is further admonished that by signing an amended complaint he certifies his claims are warranted by existing law, including the law that he exhaust administrative remedies, and that for violation of this rule plaintiff risks dismissal of his entire action, including his claims against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. Plaintiff has also requested the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of
7

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

counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied at this time. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). 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 motion to appoint counsel (Doc. 4) is denied, without prejudice. 4. Claims against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May are dismissed with leave to amend. Within thirty days of service of this order, plaintiff may amend his complaint to attempt to state cognizable claims against these defendants. Plaintiff is not obliged to amend his complaint. 5. The allegations in the pleading are sufficient at least to state cognizable claims against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. See 28 U.S.C. § 1915A. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading filed October 5, 2009, 4 USM-285 forms and instructions for service of process on defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. Within thirty days of service of this order plaintiff may return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and 5 copies of the endorsed October 5, 2009, complaint. The court will transmit them to the United States Marshal for service of process pursuant to Fed. R. Civ. P. 4. Defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina will be required to respond to plaintiff's allegations within the deadlines stated in Fed. R.
8

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

Civ. P. 12(a)(1). In this event, the court will construe plaintiff's election to proceed forthwith as consent to an order dismissing his defective claims against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May without prejudice. 6. Failure to comply with this order will result in a recommendation that this action be dismissed. DATED: February 23, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

bake2757.14option

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Dated: 24 25 Plaintiff 26 Plaintiff consents to the dismissal of defendants [insert names] without prejudice. OR _____ Plaintiff opts to file a [#] amended complaint and delay service of process. filed 1 4 5 vs. PEREZ, et al., Defendant[s]. / Plaintiff hereby submits the following documents in compliance with the court's order : completed summons form completed forms USM-285 copies of the 10/5/09 Complaint NOTICE OF SUBMISSION OF DOCUMENTS MICHAEL BAKER, Plaintiff, No. 2:09-cv-2757 MCE KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA