Rood v. Swarthout, et al.

Filing 34

ORDER signed by Magistrate Judge Dennis M. Cota on 1/16/19 ORDERING plaintiff may file a second amended complaint within 30 days of the date of service of this order. (Plummer, 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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RICHARD V. ROOD,

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No. 2:13-CV-0478-DMC-P

Plaintiff,

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v.

ORDER

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GARY SWARTHOUT, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint (ECF No. 33).

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Plaintiff alleges deliberate indifference to a serious injury—an alleged violation of his Eighth

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Amendment right against cruel and unusual punishment.

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I. SCREENING REQUIREMENT AND STANDARD

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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. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

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The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS

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Plaintiff has named 46 defendants. Plaintiff contends that while he was housed at

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the Shasta County Jail, Dr. Craig diagnosed him as having an ACL tear in his right knee and LDD

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of his L3 and L6 vertebrae. Plaintiff was informed he would have to wait until he arrived at his

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permanent housing facility before receiving treatment. Plaintiff claims the Defendants ignored

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Dr. Craig’s diagnosis and Plaintiff’s medical complaints, and that their actions amount to

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deliberate indifference to a serious medical injury in violation of the Eighth Amendment.

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Specifically, Plaintiff alleges Defendant S. Hannies was deliberately indifferent

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because he was made aware of Plaintiff’s diagnosis, current pain, and the possibility of continued

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and worsened harm, but failed to alert proper medical personnel or to provide adequate medical

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care. Plaintiff alleges Defendant R. Tan was deliberately indifferent because he was made aware

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of Plaintiff’s diagnosis, current pain, and the possibility of continued and worsened harm, but

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failed to conduct an adequate examination or properly treat Plaintiff’s injury. Additionally,

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Plaintiff alleges Tan was deliberately indifferent when he failed to treat Plaintiff’s knee after his

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surgery for his ACL tear. Plaintiff alleges Defendant Fontillas was deliberately indifferent

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because he was made aware of Plaintiff’s diagnosis, current pain, and the possibility of continued

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and worsened harm, but failed to provide proper medical care—only taking Plaintiff’s vitals

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while failing to address his actual injury or pain. Plaintiff alleges Defendant Hardman was

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deliberately indifferent because he was made aware of Plaintiff’s diagnosis, current pain, and the

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possibility of continued and worsened harm, but failed to alert the proper medical personnel or to

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provide adequate medical care.

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Further, Plaintiff alleges Defendant Win was deliberately indifferent because he

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also was made aware of Plaintiff’s diagnosis, current pain, and the possibility of continued and

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worsened harm, but failed to provide adequate medical treatment, and instead determined that

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Plaintiff did not have an ACL tear. Plaintiff alleges that Dr. Win provided inappropriate

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medication that caused an upset stomach. Plaintiff alleges Defendant Kiez was deliberately

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indifferent because he was made aware of Plaintiff’s diagnosis, current pain, and the possibility of

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continued and worsened harm, but failed to alert proper medical personnel or provide adequate

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medical care. Plaintiff contends the medical personnel then began a campaign against Plaintiff

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intended to bias other medical personnel against him.

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Plaintiff alleges Defendant Kiez was deliberately indifferent because he was made aware

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of Plaintiff’s diagnosis, current pain, and the possibility of continued and worsened harm, but

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failed to alert proper medical personnel or provide adequate medical care. Finally, Plaintiff

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alleges Defendant Braunger was deliberately indifferent because he was made aware of Plaintiff’s

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diagnosis, current pain, and the possibility of continued and worsened harm, but ignored
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Plaintiff’s medical request. Plaintiff alleges these events occurred between December 2010 and

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May 2011, when he received an MRI of his knee and the ACL tear was confirmed and surgery

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scheduled. Plaintiff provides no factual allegations related to any of the other 38 named

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Defendants.

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III. ANALYSIS
A.

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Failure to Link
Plaintiff has named 46 Defendants, however, he has pleaded facts as to only eight.

To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link

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between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t

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of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person

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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he

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

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

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the

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

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Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to

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each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Because, Plaintiff has failed to provide any facts linking the remaining 38

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Defendants with an alleged violation, Plaintiff’s claims must be dismissed as to those Defendants.

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Plaintiff will, however, be provided leave to amend in order to plead sufficient facts.

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B.

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Claims Against Hannies, Tan, Fontillas, Hardman, Win, Kiesz, Hernst,
Braunger

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Plaintiff allege Defendants Hannies, Tan, Fontillas, Hardman, Win, Kiesz, Hernst,

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Braunger were deliberately indifferent to his severe injury, amounting to a violation of the Eighth

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Amendment. Plaintiff has pleaded sufficient facts to the claim related to these Defendants to pass

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screening.
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IV. AMENDING THE COMPLAINT
Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203

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F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the

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prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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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). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See 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).

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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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V. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that plaintiff may file a second amended

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complaint within 30 days of the date of service of this order.

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Dated: January 16, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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