Williams v. Swarthout et al

Filing 9

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/22/11 ORDERING that plaintiffs first amended complaint is DISMISSED for the reasons discussed above, with leave to file a second 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 original complaint was dismissed and plaintiff

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has filed an amended complaint.

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

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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.
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. In May 2009, plaintiff received back surgery. In June

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2009, plaintiff was seen by defendant Dr. Huffman at Queen of the Valley Medical Center for

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follow up to the back surgery, where plaintiff complained of numbness and pain in his right

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hand. The 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 with Dr. Huffman in August 2009, who again

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referred plaintiff to the hand specialist. Plaintiff was again seen by other doctors who

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encouraged hand exercises and uses of a splint. Plaintiff was unable to see a hand specialist as

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the prison was in the middle of changing its outside orthopedic provider. 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.

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Plaintiff was finally scheduled for hand surgery on May 28, 2010. The amended

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complaint provides no more information as plaintiff concludes that the delay in the hand surgery

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caused him harm. Plaintiff doesn’t specifically describe what the additional harm was other than

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there was further muscle atrophy in his wrist and hand. Nor does plaintiff address if the pain

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ended after the hand surgery. A review of plaintiff’s exhibits indicates that immediately after the

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surgery and for one year after, plaintiff continued to complain of pain and numbness in his hand

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and also back pain.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937,

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1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. The court cannot articulate

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plaintiff’s claims for him. In the amended complaint plaintiff states that his hand was in pain and

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there was a delay in surgery. While this could state a cognizeable claim, plaintiff must allege

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sufficient facts to indicate he suffered an injury as a result of the delay and that defendants were

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deliberately indifferent to a serious medical need. Mere delay in medical treatment without more

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is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State

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Prison Com’rs, 766 F.2d 404, 407 (9th Cir. 1985).
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Plaintiff’s first amended complaint is dismissed with leave to file a second

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amended complaint in twenty-eight days. Plaintiff must provide more than a few conclusory

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allegations with little factual support.

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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 first amended complaint

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is dismissed for the reasons discussed above, with leave to file a second amended complaint

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within twenty-eight days from the date of service of this Order. Failure to file a second amended

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complaint will result in this action being dismissed.

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DATED: July 22, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB

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will1687.b2

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