Williams v. Huffman et al

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 4/20/11 ORDERING that 2 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 DISMISSED with 30 days to file an amended complaint. Clerk of Court is directed to send plaintiff the form for filing a civil rights action by a prisoner.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARIO A. WILLIAMS,

11
12
13
14

Plaintiff,
vs.
JASON T. HUFFMAN, M.D., et al.,
Defendants.

15
16

No. 2:11-cv-0638 KJN P

ORDER
/

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief

17

pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to

18

28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)

19

and Local Rule 302.

20
21
22

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.

23

28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

24

fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court

25

will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison

26

trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to
1

1

make monthly payments of twenty percent of the preceding month’s income credited to

2

plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to

3

the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing

4

fee is paid in full. 28 U.S.C. § 1915(b)(2).

5

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

6

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

7

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

8

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

9

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

10

28 U.S.C. § 1915A(b)(1),(2).

11

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

12

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

13

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

14

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

15

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

16

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

17

Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

18

2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

19

meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

20

1227.

21

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

22

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

23

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

24

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

25

(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more

26

than “a formulaic recitation of the elements of a cause of action;” it must contain factual
2

1

allegations sufficient “to raise a right to relief above the speculative level.” Id. However,

2

“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

3

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

4

U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

5

quotations marks omitted). In reviewing a complaint under this standard, the court must accept

6

as true the allegations of the complaint in question, id., and construe the pleading in the light

7

most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

8

The following “facts” are all based upon plaintiff’s allegations. On January 27,

9

2009, Dr. Nguyen ordered an urgent MRI for plaintiff’s back injury. On January 28, 2009, Dr.

10

Rallos discussed plaintiff’s case with Dr. Traquina, and Dr. Rallos ordered an urgent

11

neurosurgery consult. An MRI was performed on January 28, 2009, and on January 29, 2009,

12

Suzanne Silva, LVN issued an urgent notice to put plaintiff on Dr. Huffman's schedule for

13

February 9 to “Renee” at Queen of the Valley Hospital. Plaintiff was seen by Dr. Huffman on

14

February 9, 2009. Plaintiff did not receive back surgery until May 21, 2009, although the records

15

provided by plaintiff demonstrate plaintiff was provided with pain medication during the delay.1

16

Plaintiff seeks monetary damages for the delay in scheduling his back surgery and for allegedly

17

subjecting him to inadequate medical care in violation of the Eighth Amendment.

18
19
20
21
22
23
24
25

1

In the statement of claim portion of the complaint, plaintiff attempts to add his claim
that he also sustained injuries based on the delay in scheduling of his 2010 hand surgery. (Dkt.
No. 1 at 4.) At the end of his handwritten attachment, plaintiff states he received nerve damage
surgery to his right hand on May 28, 2010, and that defendants delayed scheduling plaintiff’s
hand surgery from June 2009 until May 2010. The instant complaint contains no specific
charging allegations against any named defendant in connection with plaintiff’s hand injury.
Plaintiff is advised that the instant action is proceeding solely on plaintiff’s claims concerning his
May 2009 back surgery. If plaintiff wishes to pursue a civil rights action concerning his May
2010 hand surgery, he must file a separate action. See George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007) (unrelated claims against different defendants belong in different suits); see also Fed.
R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless both commonality and same
transaction requirements are satisfied). The medical records provided by plaintiff refer to hand
surgery for carpal tunnel syndrome, and differ in time, as well as treating professionals, from
plaintiff’s back injury claims.

26
3

1
2
3

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.

4
5

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

6

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

7

Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) (“Congress did not intend

8

§ 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976)

9

(no affirmative link between the incidents of police misconduct and the adoption of any plan or

10

policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’

11

another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

12

affirmative act, participates in another's affirmative acts or omits to perform an act which he is

13

legally required to do that causes the deprivation of which complaint is made.” Johnson v.

14

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) (no liability where there is no allegation of personal participation; Mosher v.

20

Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where

21

there is no evidence of personal participation). Vague and conclusory allegations concerning the

22

involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board

23

of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of

24

personal participation is insufficient).

25
26

To constitute cruel and unusual punishment in violation of the Eighth
Amendment, conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes
4

1

v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not

2

rise to the level of an Eighth Amendment violation unless: (1) “the prison official deprived the

3

prisoner of the ‘minimal civilized measure of life's necessities,’” and (2) “the prison official

4

‘acted with deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

5

Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)).

6

A prison official does not act in a deliberately indifferent manner unless the

7

official “knows of and disregards an excessive risk to inmate health or safety.” Farmer v.

8

Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference may be shown “when prison

9

officials deny, delay or intentionally interfere with medical treatment,” or in the manner “in

10

which prison physicians provide medical care.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

11

Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th

12

Cir. 1997) (en banc). When a prisoner is alleging a delay in receiving medical treatment, the

13

delay must have led to further harm in order for the prisoner to make a claim of deliberate

14

indifference to serious medical needs. McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada

15

Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)). “[M]ere delay of surgery,

16

without more, is insufficient to state a claim of deliberate medical indifference.” Shapley, 766

17

F.2d at 407. To show deliberate indifference to a serious medical need where there is a delay in

18

treatment or surgery, plaintiff must show that the failure to provide earlier treatment or surgery

19

was harmful. McGuckin, 974 F.2d at 1060.

20

Moreover, “a complaint that a physician has been negligent in diagnosing or

21

treating a medical condition does not state a valid claim of medical mistreatment under the

22

Eighth Amendment. Medical malpractice does not become a constitutional violation merely

23

because the victim is a prisoner. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Isolated

24

occurrences of neglect do not constitute deliberate indifference to serious medical needs. See Jett

25

v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (“If the harm is an ‘isolated exception’ to the

26

defendant’s ‘overall treatment of the prisoner [it] ordinarily militates against a finding of
5

1

deliberate indifference.”); McGuckin, 974 F.2d at 1060; O'Loughlin v. Doe, 920 F.2d 614, 617

2

(9th Cir. 1990).

3

In the instant complaint, plaintiff names six different defendants: Alvaro C.

4

Traquina, Chief Medical Officer, Tessie Rallos, M.D., Jason T. Huffman, M.D., Suzanne Silva,

5

LVN, “Renee,” and Troy Brimhall. However, plaintiff has failed to include charging allegations

6

as to each named defendant. Moreover, plaintiff has failed to demonstrate that each defendant

7

was responsible for scheduling the surgery or for the alleged delay in scheduling.2

8
9

Plaintiff has also failed to allege any facts suggesting that defendants were
deliberately indifferent to plaintiff’s need for back surgery. Plaintiff has failed to allege facts that

10

demonstrate each named defendant knew of and disregarded an excessive risk to plaintiff’s

11

health. Plaintiff has not shown that each defendant was aware of facts from which an inference

12

could be drawn that a substantial risk of serious harm existed, and that each defendant drew that

13

inference. Mere negligence is not enough. McGuckin, 974 F.2d at 1060 (“A finding that the

14

defendant's neglect of a prisoner's condition was an isolated occurrence or an isolated exception

15

to the defendant's overall treatment of the prisoner ordinarily militates against a finding of

16

deliberate indifference.”)

17

The court finds the allegations in plaintiff’s complaint so vague and conclusory

18

that it is unable to determine whether the current action is frivolous or fails to state a claim for

19

relief. The court has determined that the complaint does not contain a short and plain statement

20

as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading

21

policy, a complaint must give fair notice and state the elements of the claim plainly and

22
2

23
24
25
26

In McGuckin, 974 F.2d at 1050, the plaintiff was denied a necessary surgery for over
three years and suffered extreme pain during that delay. The only two defendants named by
McGuckin were the treating physicians. Although the seriousness of McGuckin's medical
condition was not disputed, the Ninth Circuit held that the district court had properly granted
summary judgment to the physicians because the record showed that prison administrators were
responsible for scheduling diagnostic examinations and surgeries, not the doctors. Because the
doctors did not control when McGuckin was scheduled for surgery, they were not responsible for
the delay and were not deliberately indifferent to plaintiff's medical condition. Id. at 1062.
6

1

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

2

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

3

support plaintiffs claim. Id. Because plaintiff has failed to comply with the requirements of Fed.

4

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

5

an amended complaint.

6

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

7

conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.

8

Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms

9

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

10

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

11

claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

12

588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

13

participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

14

268 (9th Cir. 1982). Plaintiff should only name as defendants those persons responsible for the

15

delay, provided the person was deliberately indifferent, as explained above. Plaintiff is reminded

16

that this action is proceeding as to his claims concerning his 2009 back injury. Plaintiff should

17

not include any allegations concerning the 2010 hand surgery.

18

In addition, plaintiff is hereby informed that the court cannot refer to a prior

19

pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that

20

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

21

requirement exists because, as a general rule, an amended complaint supersedes the original

22

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

23

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

24

amended complaint, as in an original complaint, each claim and the involvement of each

25

defendant must be sufficiently alleged.

26

////
7

1

However, plaintiff need not resubmit the 229 pages of exhibits appended to the

2

original complaint. Now that the exhibits are a part of the court record, the parties and the court

3

can refer to the exhibits as needed.

4

In accordance with the above, IT IS HEREBY ORDERED that:

5

1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

6

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

7

Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

8

§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

9

Director of the California Department of Corrections and Rehabilitation filed concurrently

10

herewith.

11

3. Plaintiff’s complaint is dismissed.

12

4. Within thirty days from the date of this order, plaintiff shall complete the

13

attached Notice of Amendment and submit the following documents to the court:

14

a. The completed Notice of Amendment; and

15

b. An original and one copy of the Amended Complaint.

16

Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

17

Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

18

also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

19

Failure to file an amended complaint in accordance with this order may result in the dismissal of

20

this action.

21

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

22

action by a prisoner.

23

DATED: April 20, 2011

24

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

25
26

will0638.14

8

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARIO A. WILLIAMS,

11
12
13

Plaintiff,
vs.
JASON T. HUFFMAN, M.D., et al.,

14
15

____________________________________/
Plaintiff hereby submits the following document in compliance with the court's
order filed

18
19

NOTICE OF AMENDMENT

Defendants.

16
17

No. 2:11-cv-0638 KJN P

:
______________

Amended Complaint only (no exhibits required)

DATED:

20
21
Plaintiff
22
23
24
25
26
9