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)

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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

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