Roberts v. Brown, et al

Filing 15

ORDER signed by Magistrate Judge Dale A. Drozd on 8/11/11 ORDERING that plaintiff's 14 motion to proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISM ISSED with leave to amend within 30 days. Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action. Plaintiffs 2 motion for appointment of counsel is DENIED; Plaintiffs 3 motion for a temporary restraining order is DENIED as moot.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

PAUL ROBERTS,

11
12
13

Plaintiff,

No. CIV S-11-0474 FCD DAD P

vs.
JERRY BROWN et al.,

14

Defendant.

15

ORDER
/

16

Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

17

U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

18

This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule

19

302 and 28 U.S.C. § 636(b)(1).

20

Plaintiff has submitted an in forma pauperis application that makes the showing

21

required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma

22

pauperis.

23

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See

24

28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is

25

currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28

26

U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of
1

1

the preceding month’s income credited to plaintiff’s trust account. These payments shall be

2

collected and forwarded by the appropriate agency to the Clerk of the Court each time the

3

amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C.

4

§ 1915(b)(2).

5
6

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

7

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

8

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

9

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

10

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

11

U.S.C. § 1915A(b)(1) & (2).

12

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

13

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

14

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

15

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

16

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

17

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

18

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

19

Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

20

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

21

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

22

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

23

(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

24

contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

25

factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

26

550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
2

1

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

2

738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

3

doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

4

The Civil Rights Act under which this action was filed provides as follows:

5

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.

6
7
8

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

9

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

10

Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

11

(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

12

meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

13

omits to perform an act which he is legally required to do that causes the deprivation of which

14

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

15

Moreover, supervisory personnel are generally not liable under § 1983 for the

16

actions of their employees under a theory of respondeat superior and, therefore, when a named

17

defendant holds a supervisorial position, the causal link between him and the claimed

18

constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

19

(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

20

allegations concerning the involvement of official personnel in civil rights violations are not

21

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

22
23

PLAINTIFF’S COMPLAINT
In his complaint, plaintiff has identified Governor Brown, the Director of the

24

California Department of Corrections and Rehabilitation, Warden McDonald, Associate Warden

25

Beven, Dr. Swingle, Physician’s Assistant Miranda, Nurse Clark, Nurse Reynolds, and Nurse

26

Moore as the defendants in this action. Plaintiff alleges that the defendants have refused to
3

1

provide him with his prescription medication on a number of occasions because he was either not

2

in his cell during pill distribution or was not in compliance with the applicable prison rules with

3

respect to receiving medication, such as having his cell lights on during distribution of

4

medication. Plaintiff also alleges that he has received his prescribed medication late during

5

certain lock-downs at his institution of confinement. Finally, plaintiff alleges that part of his

6

wheelchair had broken, causing it to become unstable and shake while in motion, but that

7

defendants took more than seventeen months to replace it. In terms of relief, plaintiff requests

8

declaratory judgment and monetary damages. (Compl. Attach. & Exs.)

9
10

DISCUSSION
The allegations of plaintiff’s complaint are so vague and conclusory that the court

11

is unable to determine whether the current action is frivolous or fails to state a claim for relief.

12

The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

13

Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

14

the defendants and must allege facts that support the elements of the claim plainly and succinctly.

15

Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege

16

with at least some degree of particularity overt acts which defendants engaged in that support his

17

claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

18

8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an

19

amended complaint.

20

If plaintiff chooses to file an amended complaint, he must allege facts

21

demonstrating how the conditions complained of resulted in a deprivation of his federal

22

constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

23

amended complaint must allege in specific terms how each named defendant was involved in the

24

deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

25

some affirmative link or connection between a defendant’s actions and the claimed deprivation.

26

Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);
4

1

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

2

official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

3

F.2d 266, 268 (9th Cir. 1982).

4

To the extent that plaintiff wishes to pursue an inadequate medical care claim, he

5

is advised that he must allege how each defendant’s conduct rose to the level of “deliberate

6

indifference” to his serious medical needs. Deliberate indifference is “a state of mind more

7

blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the

8

prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. Under the deliberate indifference

9

standard, a person may be found liable for denying adequate medical care if he “knows of and

10

disregards an excessive risk to inmate health and safety.” Id. at 837. See also Estelle v. Gamble,

11

429 U.S. 97, 106 (1976); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003); Doty

12

v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). A deliberate indifference claim

13

predicated upon the failure to provide medical treatment has two elements:

14

16

First, the plaintiff must show a “serious medical need” by
demonstrating that “failure to treat a prisoner’s condition could
result in further significant injury or the ‘unnecessary and wanton
infliction of pain.’” Second, the plaintiff must show the
defendant’s response to the need was deliberately indifferent.

17

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); McGuckin v. Smith, 974 F.2d 1050, 1059

18

(9th Cir. 1991) (an Eighth Amendment medical claim has two elements: “the seriousness of the

19

prisoner’s medical need and the nature of the defendant’s response to that need.”), overruled on

20

other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

15

21

In addition, to the extent that plaintiff has named prison staff members involved in

22

processing of his inmate appeals as defendants in this action, he is advised that prison officials

23

are not required under federal law to process inmate grievances and complaints in a specific way

24

or to respond to them in a favorable manner. In this regard, even if named defendants delayed,

25

denied, or ignored plaintiff’s administrative grievances and complaints, they have not deprived

26

him of a federal constitutional right. It is well established that “inmates lack a separate
5

1

constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334

2

F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

3

Finally, the court notes that plaintiff’s allegations against California Governor

4

Brown, Director of the California Department of Corrections and Rehabilitation, Warden

5

McDonald, Associate Warden Beven, and Dr. Swingle do not appear to state a cognizable claim

6

for relief. The Ninth Circuit has recently reaffirmed that a supervisory defendant may be held

7

liable under § 1983 “‘if there exists either (1) his or her personal involvement in the

8

constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s

9

wrongful conduct and the constitutional violation.’” Starr v. Baca, __ F.3d __, 2011 WL

10

2988827, at *4 (9th Cir. July 25, 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.

11

1989)). In his complaint, plaintiff has not alleged that the supervisory defendants were

12

personally involved in his alleged constitutional deprivations. Nor has he alleged a sufficient

13

causal connection between their conduct and any constitutional violation. If plaintiff still wishes

14

to proceed against these defendants in this action, he will need to clarify in any amended

15

complaint why these supervisory officials are named as defendants.

16

Plaintiff is informed that the court cannot refer to a prior pleading in order to

17

make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

18

complaint be complete in itself without reference to any prior pleading. This is because, as a

19

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

20

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

21

longer serves any function in the case. Therefore, in an amended complaint, as in an original

22

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

23
24

OTHER MATTERS
Also pending before the court is plaintiff’s motion for appointment of counsel and

25

motion for a temporary restraining order. First, as to plaintiff’s motion for appointment of

26

counsel, the United States Supreme Court has ruled that district courts lack authority to require
6

1

counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court,

2

490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request

3

the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935

4

F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

5

The test for exceptional circumstances requires the court to evaluate the plaintiff’s

6

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

7

light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

8

1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

9

common to most prisoners, such as lack of legal education and limited law library access, do not

10

establish exceptional circumstances that would warrant a request for voluntary assistance of

11

counsel. In the present case, the court does not find the required exceptional circumstances.

12

As to plaintiff’s motion for a temporary restraining order, plaintiff is advised that

13

his one-page motion is insufficient under Local Rule 231(c), so the court will construe it as a

14

motion for a preliminary injunction. Plaintiff is advised that when an inmate seeks injunctive or

15

declaratory relief concerning the prison where he is incarcerated, his claims for such relief

16

become moot when he is no longer subjected to those conditions. See Weinstein v. Bradford,

17

423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). Here, plaintiff

18

requests preliminary injunctive relief against staff at High Desert State Prison. However, court

19

records reveal that since filing his motion for injunctive relief, plaintiff was transferred to the

20

Correctional Training Facility. Accordingly, the court will deny plaintiff’s motion for a

21

temporary restraining order as moot.

22

CONCLUSION

23

Accordingly, IT IS HEREBY ORDERED that:

24

1. Plaintiff’s application to proceed in forma pauperis (Doc. No. 14) is granted.

25

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

26

The fee shall be collected and paid in accordance with this court’s order to the Director of the
7

1

California Department of Corrections and Rehabilitation filed concurrently herewith.

2

3. Plaintiff’s complaint is dismissed.

3

4. Plaintiff is granted thirty days from the date of service of this order to file an

4

amended complaint that complies with the requirements of the Civil Rights Act, the Federal

5

Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

6

docket number assigned to this case and must be labeled “Amended Complaint”; failure to file an

7

amended complaint in accordance with this order will result in a recommendation that this action

8

be dismissed without prejudice.

9
10

5. The Clerk of the Court is directed to send plaintiff the court’s form for filing a
civil rights action.

11

6. Plaintiff’s motion for appointment of counsel (Doc. No. 2) is denied.

12

7. Plaintiff’s motion for a temporary restraining order (Doc. No. 3) is denied as

13

moot.

14

DATED: August 11, 2011.

15
16
17

DAD:9
robe0474.14a

18
19
20
21
22
23
24
25
26
8