Pasion v. Haviland et al

Filing 13

ORDER signed by Magistrate Judge Gregory G. Hollows on 04/20/11 ordering that plaintiff's amended complaint is dismissed, with leave to file a second amended complaint within 28 days from the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE M. PASION,

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Plaintiff,

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No. CIV S-10-3227 GGH P

vs.
JOHN A. HAVILAND, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief

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pursuant to 42 U.S.C. § 1983. Plaintiff’s original complaint was dismissed and plaintiff has filed

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an amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff’s amended complaint contains allegations of excessive force, inadequate

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medical care and retaliation. The court notes that other than a few additions and some reworded

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paragraphs most of the amended complaint is identical to the original complaint.

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Plaintiff states that another inmate assaulted him and they began fighting. Two

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guards, defendants Valdez and Freitas, arrived and ordered plaintiff and the inmate to get down.

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Plaintiff states that he got down on the ground but before he hit the ground he was already soaked
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with pepper spray. Plaintiff then states a witness saw the guards kick plaintiff in the ribs while

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he was on the ground, however, plaintiff did not feel the kicks, see the kicks or apparently suffer

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any injury as a result of the kicks. Plaintiff has failed to allege a viable claim of excessive force.

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The use of pepper spray on two inmates fighting is reasonable. With respect to the guard that

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may have kicked plaintiff, but he did not feel, this also fails to state a viable claim of excessive

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force.

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Plaintiff was then taken to medical where he was checked for injuries. Plaintiff

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states that instead of washing him with water, some unidentified person placed him in a holding

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cage for 45 minutes where the pepper spray penetrated his skin and eyes and he was unable to

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breathe properly. Plaintiff has again failed to identify what medical staff checked him for

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injuries and did not allow him to wash with water. If plaintiff wishes to proceed with this claim

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he must identify the appropriate defendant.

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Plaintiff then alleges that five months later he woke up with a swollen face and his

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neck and arms were irritated. Doctors at the prison treated him for a rash or allergy, despite

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plaintiff’s insistence that this was the result of the pepper spray from five months prior. Plaintiff

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contends this condition became worse and several months later he was taken to an outside

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hospital, Doctors Hospital of Manteca. Plaintiff then states that the doctors at the hospital did

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not treat him for delayed reaction to pepper spray. Plaintiff states doctors repeatedly tested his

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blood and urine and performed a biopsy of skin from his arm. However, plaintiff alleges these

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doctors were somehow deliberately indifferent. Plaintiff was later taken to Doctors Hospital of

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San Pablo where another doctor again treated plaintiff for a rash or allergy, instead of for

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exposure to pepper spray.1 Plaintiff does not allege his medical problems were ignored, rather

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his ailments were not quickly cured and he does not agree with the great deal of treatment he

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It is not clear how treatment for pepper spray would be any different for a treatment for
a rash or allergy, as they all appear to deal with an adverse reaction of the skin, nor does plaintiff
state what the proper treatment would include.
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received. Plaintiff must show that defendants were deliberately indifferent to his serious medical

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needs. In addition, it is not apparent from the complaint if the defendants at the Doctors Hospital

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of Manteca or Doctors Hospital San Pablo are state actors under 42 U.S.C. § 1983.

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Plaintiff also makes allegations that approximately 18 months after the alleged

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incident he was placed in administrative segregation in retaliation for the filing of a complaint.

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Plaintiff generally states that certain defendants placed him in administrative segregation,

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because they “knew” he would not withdraw his appeal, but does not provide any factual support

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to this allegation. Plaintiff does makes one allegation that defendant Captain Cappel, “asked

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plaintiff to withdraw his complaint. Again, knowing that plaintiff would not withdraw his

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complaint, Captain Cappel ordered the retention of plaintiff to AD/SEG.” Amended complaint at

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17. While this could allege a claim of retaliation, plaintiff must allege more facts as it is not

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clear what happened. Rather than state what defendants were thinking, plaintiff must describe

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the interaction or discussion that occurred with these defendants. Plaintiff should describe what

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the defendants said, and what plaintiff stated.

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The amended complaint is dismissed and plaintiff will be provided 28 days to file

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a second amended complaint. No further amendments will be allowed. Failure to file a second

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amended complaint will result in this action being dismissed.

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In order to state a claim under § 1983, a plaintiff must allege that: (1) defendant

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was acting under color of state law at the time the complained of act was committed; and (2)

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defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48

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(1988). As discussed above, it does not appear that the doctors from the outside hospital are state

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actors.

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To state an Eighth Amendment claim, a plaintiff must allege that the use of force

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was “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir.

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2001). The malicious and sadistic use of force to cause harm always violates contemporary
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standards of decency, regardless of whether or not significant injury is evident. Hudson v.

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McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). However, not “every malevolent touch by a

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prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth

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Amendment's prohibition of cruel and unusual punishments necessarily excludes from

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constitutional recognition de minimis uses of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks and

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citations omitted).

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In order to state a claim for violation of the Eighth Amendment based on
inadequate medical care, plaintiff must allege “acts or omissions sufficiently harmful to evidence

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deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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To prevail, plaintiff must show both that his medical needs were objectively serious, and that

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defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299,

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(1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of

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mind for a medical claim is “deliberate indifference.” Hudson v. McMillian, 503 U.S. 1, 4

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(1992).

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A serious medical need exists if the failure to treat a prisoner’s condition could

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result in further significant injury or the unnecessary and wanton infliction of pain. Indications

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that a prisoner has a serious need for medical treatment are the following: the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900

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F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01

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(9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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In Farmer v. Brennan, 511 U.S. 825 (1994) the Supreme Court defined a very

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strict standard which a plaintiff must meet in order to establish “deliberate indifference.” Of
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course, negligence is insufficient. Farmer, 511 U.S. at 835. However, even civil recklessness

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(failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should

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be known) is insufficient. Id. at 836-37. Neither is it sufficient that a reasonable person would

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have known of the risk or that a defendant should have known of the risk. Id. at 842.

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“[T]he official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

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837. Thus, a defendant is liable if he knows that plaintiff faces “a substantial risk of serious

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harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “[I]t

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is enough that the official acted or failed to act despite his knowledge of a substantial risk of

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serious harm.” Id. at 842. If the risk was obvious, the trier of fact may infer that a defendant

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knew of the risk. Id. at 840-42. However, obviousness per se will not impart knowledge as a

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matter of law.

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In order to state a retaliation claim, a plaintiff must plead facts which suggest that

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retaliation for the exercise of protected conduct was the “substantial” or “motivating” factor

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behind the defendant’s conduct. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

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1989); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). The plaintiff must also plead facts

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which suggest an absence of legitimate correctional goals for the conduct he contends was

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retaliatory. Pratt at 806 (citing Rizzo at 532). Mere conclusions of hypothetical retaliation will

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not suffice, a prisoner must “allege specific facts showing retaliation because of the exercise of

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the prisoner’s constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 (n.1) (10th Cir. 1990).

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In Pratt, the Ninth Circuit concluded that in evaluating retaliation claims, courts

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should defer “to prison officials in the evaluation of proffered legitimate penological reasons for

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conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (citing Sandin v. Conner, 515 U.S. 472,

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115 S. Ct. 2293 (1995)).

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, 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

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s

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amended complaint is dismissed, with leave to file a second amended complaint within twenty-

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eight days from the date of service of this Order. Failure to file an second amended complaint

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will result in this action being dismissed.

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DATED: April 20, 2011

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/s/ Gregory G. Hollows

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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:AB
pasi3227.b2

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