Williams v. Swarthout et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/18/11 ORDERING that plaintiffs second amended complaint is DISMISSED for the reasons discussed above, with leave to file a third amended complaint within 28 days from the date of service of this Order. (Dillon, 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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MARIO A. WILLIAMS,
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Plaintiff,
No. CIV S-11-1687 GGH P
vs.
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GARY SWARTHOUT, Warden, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks
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relief pursuant to 42 U.S.C. § 1983. Plaintiff’s first amended complaint was dismissed and
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plaintiff has filed a second amended complaint.
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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, 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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127
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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows
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the court to draw the reasonable inference that the defendant is liable for the misconduct
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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 alleges that defendants were deliberately indifferent to his serious
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medical needs regarding his hand surgery. The four defendants are Swarthout, the warden,
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Austin, the CEO for medical care, Traquina, the Chief Medical Officer, and Mefford, a nurse. In
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May 2009, plaintiff received back surgery. In June 2009, plaintiff was seen for follow up to the
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back surgery, where plaintiff complained of numbness and pain in his right hand. A non
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defendant doctor thought it was possibly related to the back surgery or perhaps carpal tunnel
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syndrome and recommended that plaintiff both see a hand specialist and return for further follow
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up in two months. Plaintiff was seen by various other doctors but was not able to see the hand
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specialist. Plaintiff returned for another follow up in August 2009, and was again advised to see
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a hand specialist.
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Plaintiff was unable to see a hand specialist at that time and in January 2010, his
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wrist was x-rayed which revealed no acute fracture, dislocation or focal osseous lesion and no
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joint space narrowing. Plaintiff was finally scheduled for hand surgery on May 28, 2010, but
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states he still suffers from hand pain and problems stemming from the delay in surgery.
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However, plaintiff has again failed to link the named defendants to his alleged deprivation. The
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only allegation against Traquina is that plaintiff filed a request for surgery on April 22, 2010, and
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Traquina replied on April 27, 2010, that plaintiff would receive the surgery in May 2010. The
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only allegation against Austin is that also on April 22, 2010, plaintiff requested hand surgery and
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Austin replied that surgery would occur in the next 60 days. The surgery occurred on May 28,
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2010, so it is not clear how these two defendants are liable for plaintiff receiving surgery
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approximately one month after he notified them. The only allegation against Swarthout is that as
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warden of the facility, he was aware of plaintiff’s pain and suffering and his request for hand
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surgery. The court notes there are no allegations in the second amended complaint against
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Mefford.
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While plaintiff could have a cognizeable claim for an Eighth Amendment
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violation, plaintiff has failed to link any of the defendants to his alleged deprivation. There are
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no allegations that any of these defendants ever treated plaintiff and two simply answered a
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request for surgery which occurred a month later.
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Plaintiff’s second amended complaint is dismissed with leave to file a third
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amended complaint in twenty-eight days. Plaintiff must link the named defendants to his alleged
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constitutional deprivation. The court cannot serve defendants who had little or no involvement
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in this case.
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In order to state a claim for violation of the Eighth Amendment based on
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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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It is nothing less than recklessness in the criminal sense-subjective
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standard-disregard of a risk of harm of which the actor is actually aware. Id. at 838-842. “[T]he
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official must both be aware of facts from which the inference could be drawn that a substantial
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risk of serious harm exists, and he must also draw the inference.” Id. at 837. Thus, a defendant
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is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk
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by failing to take reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official
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acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. If
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the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42.
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However, obviousness per se will not impart knowledge as a matter of law.
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The Civil Rights Act under which this action was filed provides as follows:
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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.
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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the
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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
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omits to perform an act which he is legally required to do that causes the deprivation of which
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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Moreover, supervisory personnel are generally not liable under § 1983 for the
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actions of their employees under a theory of respondeat superior and, therefore, when a named
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defendant holds a supervisorial position, the causal link between him and the claimed
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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862
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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S.
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941 (1979). Vague and conclusory allegations concerning the involvement of official personnel
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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982).
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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
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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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Accordingly, IT IS HEREBY ORDERED that plaintiff’s second amended
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complaint is dismissed for the reasons discussed above, with leave to file a third amended
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complaint within twenty-eight days from the date of service of this Order. Failure to file a third
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amended complaint will result in this action being dismissed.
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DATED: November 18, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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will1687.b3
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