Tenore v. Goodgame et al

Filing 27

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/28/2012 ORDERING that plaintiff's 21 motion for leave to amend is GRANTED; and this action shall proceed on the 8/29/12 First Amended Complaint; and RE COMMENDING that plaintiff's claims against defendants Simmons, Neuner, Subia, Martel, and the John Doe defendants be dismissed with prejudice; additionally, that all claims except the deliberate indifference claims against defendants Goodgame, Tseng, Heatley, Heffner, and Smith concerning medical treatment for scabies be dismissed with prejudice.Referred to Judge William B. Shubb; Objections due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL TENORE,

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Plaintiff,

No. 2:11-cv-1082 WBS CKD P

vs.
NATHANAEL GOODGAME, et al.,
Defendants.

ORDER AND

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FINDINGS & RECOMMENDATIONS

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed his

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original complaint on April 21, 2011, seeking relief under 42 U.S.C. § 1983. (Dkt. No. 1.) The

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complaint was served on five defendants, who filed an answer on July 30, 2012. (Dkt. No. 16.)

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Discovery is underway. (See Dkt. No. 17.)

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I. Motion to Amend

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On August 29, 2012, plaintiff filed a motion for leave to file an amended

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complaint and a proposed first amended complaint (“FAC”). (Dkt. Nos. 21, 22.) Defendants

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filed an opposition to the motion. (Dkt. No. 24.)

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In the FAC, plaintiff sets forth in greater detail his allegations against the current

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defendants (Goodgame, Tseng, Heatley, Heffner, and Smith), and adds four new defendants. Of

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these, two (Simmons and Neuner) were effectively screened out in the court’s April 12, 2012

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order, as the court did not find that service was appropriate for these defendants, who were also
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named in the original complaint. (Dkt. No. 10 at 2.) The remaining two new defendants are

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identified as Wardens at Mule Creek State Prison (MCSP). Plaintiff has also listed numerous

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“John Doe” defendants in the FAC.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be

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given freely when justice requires. In deciding whether justice requires granting leave to amend,

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factors to be considered include the presence or absence of undue delay, bad faith, dilatory

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motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the

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opposing party and futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182

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(1962).

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Defendants argue that leave to amend should be denied as futile. They assert that

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the FAC does not state claims against Simmons and Neuner; that plaintiff cannot proceed on

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claims against “John Doe” defendants; and that, insofar as plaintiff seeks to assert claims on

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behalf of a class of inmates, he is barred from doing so. Defendants further argue that plaintiff’s

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state tort claims for medical malpractice as alleged in the FAC cannot go forward, as he has not

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alleged compliance with the California Tort Claims Act. Finally, defendants argue that plaintiff

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has impermissibly added claims unrelated to his allegations in the original complaint. (Dkt. No.

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24.)

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Defendants arguments have some merit. However, in light of plaintiff’s detailed

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allegations in the FAC concerning the five original defendants, the court will not categorically

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deny leave to amend. Rather, the court will grant plaintiff’s motion and proceed to screen the

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FAC (which it would do anyway as a matter of course), to determine which claims against which

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defendants may go forward. The court concludes that this process would not unduly prejudice

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defendants, while allowing plaintiff to clarify the basis of his claims.

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II. Screening of the FAC

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

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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 (2007). “The pleading must

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contain something more...than...a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

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

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

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U.S. ___, 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 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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

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Fed. R. Civ. P. 8 sets forth general rules of notice pleading in the federal courts.

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See Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Complaints are required to set a forth (1) the

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grounds upon which the court’s jurisdiction rests, (2) a short and plain statement of the claim

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showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only

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“sufficient allegations to put defendants fairly on notice of the claims against them.” McKeever

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v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Even if the factual elements of the cause of action

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are present, but are scattered throughout the complaint and are not organized into a “short and

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plain statement of the claim,” dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v.

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Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

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In the FAC, plaintiff alleges that medical staff at MCSP were deliberately

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indifferent to his seven-month scabies infection between September 2009 and April 2010. “[T]o

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maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show

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‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two part test for deliberate

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indifference requires the plaintiff to show (1) “ ‘a serious medical need’ by demonstrating that

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‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary

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and wanton infliction of pain,’ ” and (2) “the defendant’s response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)

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(en banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful act or

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failure to respond to a prisoner’s pain or possible medical need, and harm caused by the

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indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a

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claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a

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claim that the named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s]

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health ....” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Also, “a difference of opinion between a prisoner-patient and prison medical

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authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662

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F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff “must show that

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the course of treatment the doctors chose was medically unacceptable under the circumstances ...

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and ... that they chose this course in conscious disregard of an excessive risk to plaintiff’s

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health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). A

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prisoner’s mere disagreement with diagnosis or treatment does not support a claim of deliberate

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indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).

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The court finds that, for screening purposes, the FAC states cognizable Eighth

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Amendment claims against defendants Tseng, Goodgame, Heatley, Heffner, and Smith

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concerning plaintiff’s medical treatment for scabies. As to allegations concerning plaintiff’s

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treatment for heart, ear, prostate, and digestive problems, the court finds that these do not rise to

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the level of Eighth Amendment claims.

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Plaintiff also names MCSP Wardens Subia and Martel as defendants. Supervisory

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personnel are generally not liable under § 1983 for the actions of their employees under a theory

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of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the

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causal link between him and the claimed constitutional violation must be specifically alleged.

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See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441

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(9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning

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

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Under this standard, the court finds that

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plaintiff fails to state a claim against Subia and Martel. Nor are plaintiff’s allegations sufficient

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to state a claim against defendants Simmons, Neuner, “John Doe 1 Pharmacy Technician,” or

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“Does 1-100.” See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th. Cir. 1980) (“As a general rule,

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the use of ‘John Doe’ to identify a defendant is not favored.”)

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Plaintiff also asserts claims arising under California law. However, plaintiff fails

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to allege compliance with California’s Tort Claims Act. See Cal. Govt. Code § 910; Mangold v.

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Cal. Pub. Utile. Common, 67 F.3d. 1470, 1477 (9th Cir. 1995). Therefore, plaintiff cannot

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proceed on these claims.

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In sum, the court determines that, for screening purposes, the FAC states Eighth

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Amendment medical indifference claims against the original five defendants concerning

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plaintiff’s scabies infection from September 2009 through August 2010. The undersigned will

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recommend that all remaining claims and defendants be dismissed from this action.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion for leave to amend (Dkt. No. 21) is granted; and

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2. This action shall proceed on the First Amended Complaint filed August 29,

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2012 (Dkt. No. 22).

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IT IS HEREBY RECOMMENDED THAT plaintiff’s claims against defendants

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Simmons, Neuner, Subia, Martel, and the John Doe defendants be dismissed with prejudice.

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Additionally, that all claims except the deliberate indifference claims against defendants

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Goodgame, Tseng, Heatley, Heffner, and Smith concerning medical treatment for scabies be

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dismissed with prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 28, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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