Jackson v. Traquina et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 8/22/2014 DISMISSING plaintiff's amended complaint; plaintiff has 30 days to file a second amended complaint; and the Clerk shall send plaintiff the form for filing a civil rights complaint.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER JACKSON,

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No. 2:13-cv-0781 KJN P

Plaintiff,

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v.

ORDER

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ALVARO TRAQUINA, et al.,

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Defendants.

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

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pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred

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to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff’s amended

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complaint is now before the court.1
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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Plaintiff also filed a second motion to proceed in forma pauperis. (ECF No. 10.) Plaintiff was
granted leave to proceed in forma pauperis (ECF No. 8) and no further motions are required.
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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 (9th

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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, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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Plaintiff names three individuals as defendants: Dr. Alvaro Traquina, Chief Medical

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Officer, R.N. M. de la Vega, and Dr. Ashley Pfle. Plaintiff alleges that in 2009, after he was

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incarcerated, he “got in contact with” Dr. Traquina “to let him know that [plaintiff] was going

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blind.” (ECF No. 9 at 2.) Plaintiff claims that Dr. Traquina “did nothing to help” plaintiff or “get

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back” to plaintiff. He claims that R.N. de la Vega “was there when ‘she’ finally got in touch with

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[plaintiff] and 2010 when [plaintiff] was going blind in [his] left eye.” (ECF No. 9 at 3.) Plaintiff

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alleges that Dr. Pfle started seeing plaintiff after he became blind, and “tried to somewhat not

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help [plaintiff]. She act[ed] like she really did not want to help or give [plaintiff] any stronger eye

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drops for [his] eyes.” (Id.) Plaintiff includes no other factual allegations, but provided 95 pages

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of exhibits.

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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) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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

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

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

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

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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

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participation is insufficient).

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“[D]eliberate indifference to serious medical needs of prisoners constitutes the

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unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.” Estelle v.

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Gamble, 429 U.S. 97, 104-05 (1976) (internal citations, punctuation and quotation marks

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omitted). Plaintiff must show “deliberate indifference” to his “serious medical needs,” id. at 104,
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which includes “both an objective standard -- that the deprivation was serious enough to

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constitute cruel and unusual punishment -- and a subjective standard -- deliberate indifference.”

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Snow v. McDaniel, 681 F.3d 978, 982 (9th Cir. 2012), overruled in part on other grounds by

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Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)..

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To meet the objective element, plaintiff must demonstrate the existence of a serious

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medical need. Estelle, 429 U.S. at 104. Such need exists if the failure to treat the injury or

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condition “could result in further significant injury” or cause “the unnecessary and wanton

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infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotes and

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citations omitted). Serious medical needs include “[t]he existence of an injury that a reasonable

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doctor or patient would find important and worthy of comment or treatment; the presence of a

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medical condition that significantly affects an individual’s daily activities; [and] the existence of

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chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),

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

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Under the subjective element, a prison official is deliberately indifferent only if the

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

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Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal quotes and citation omitted). To prevail on

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a claim for deliberate indifference, a prisoner must demonstrate that the prison official “kn[ew] of

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and disregard[ed] an excessive risk to inmate health or safety; the official must both be aware of

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the facts from which the inference could be drawn that a substantial risk of serious harm exists,

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and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate

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indifference “may appear when prison officials deny, delay or intentionally interfere with medical

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treatment, or it may be shown by the way in which prison physicians provide medical care.”

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Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). The court “need not defer to the

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judgment of prison doctors or administrators” when deciding the deliberate indifference element.

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Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989).

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In applying this standard, the Ninth Circuit has held that before it can be said that a

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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing

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Estelle, 429 U.S. at 105-06.) A complaint that a physician has been negligent in diagnosing or

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

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Amendment. Even gross negligence is insufficient to establish deliberate indifference to serious

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medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A difference of

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opinion between medical professionals concerning the appropriate course of treatment generally

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does not amount to deliberate indifference to serious medical needs. Toguchi, 391 F.3d at 1058;

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Also, “a difference of opinion between a

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prisoner-patient and prison medical authorities regarding treatment does not give rise to a[§ ]1983

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claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that such a

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difference of opinion amounted to deliberate indifference, the prisoner “must show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances” and “that

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they chose this course in conscious disregard of an excessive risk to [the prisoner's] health.” See

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Wilhelm v. Rotman, 680 F.3d

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1113, 1123 (9th Cir. 2012) (doctor’s awareness of need for treatment followed by his unnecessary

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delay in implementing the prescribed treatment sufficient to plead deliberate indifference); see

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also Snow, 681 F.3d at 988 (decision of non-treating, non-specialist physicians to repeatedly deny

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recommended surgical treatment may be medically unacceptable under all the circumstances.)

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Review of plaintiff’s exhibits reveals that plaintiff suffers from glaucoma, and at the time

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he was prescribed Timolol Maleate eye drops. (ECF No. 9 at 8.) The January 21, 2011 first level

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appeal response states that plaintiff claimed he was six to eight months overdue for an

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appointment with an eye doctor, and that plaintiff was taking eye drops even though it seemed

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like it was making his eyes worse, but the doctor told plaintiff that if he did not use the eye drops,

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plaintiff could go blind. (ECF No. 9 at 19.) The appeal response indicates that plaintiff was

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interviewed by defendant R.N. de la Vega, who confirmed that plaintiff has a history of glaucoma

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and had a current prescription for Timolol Maleate eye drops. She noted that plaintiff was last

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seen by Dr. Ulandy, ophthalmologist on September 2, 2009, with a follow-up appointment to be

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scheduled in three months, but which had not occurred by January 21, 2011. R.N. de la Vega
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scheduled plaintiff for an appointment with the ophthalmologist the last week of January 2011.

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(ECF No. 9 at 20.) The second level appeal response reflected that plaintiff was seen by the

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ophthalmologist on February 9, 2011, and plaintiff’s eye drops were current and recently

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renewed. (ECF No. 9 at 28.) On October 24, 2011, plaintiff’s eye examination revealed

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intraocular eye pressures were within normal limits. (ECF No. 9 at 33.) At the Director’s Level

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of Review, submitted on June 13, 2011, plaintiff claimed he was still dissatisfied because he was

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told that eye laser treatment would help the glaucoma, but plaintiff wasn’t receiving the laser

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treatment, and plaintiff’s eye was getting no better; plaintiff was still 90% blind in his left eye.

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(ECF No. 9 at 25.) The director denied the appeal, noting that plaintiff had active orders for

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glaucoma medications, saw the ophthalmologist on February 9, 2011, and the eye exam on

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October 24, 2011, revealed intraocular pressures within normal limits. (ECF No. 9 at 25.)

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Despite these appeal decisions, plaintiff provided a copy of a physician request for

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services, dated October 24, 2011, in which the physician diagnosed plaintiff with advanced

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glaucoma and cataracts, and requested urgent cataract and glaucoma surgery. (ECF No. 9 at 52.)

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The medical necessity entry notes increased intraocular pressure (“IOP”) in both eyes, and states

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that plaintiff “needs urgent glaucoma surgery.” (ECF No. 9 at 52.) The request appears to have

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been approved on October 24, 2011. (ECF No. 9 at 52.)

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However, the form is also marked “refused.” (ECF No. 9 at 52.)

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The November 8, 2011 report by Dr. Rusheed notes that plaintiff “will go blind with IOP

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at this level. Will not have surgery under any circumstances.” (ECF No. 9 at 53.) Dr. Rusheed

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noted that plaintiff “refused surgery again.” (ECF No. 9 at 53.)2 Plaintiff’s refusal to have

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surgery was again noted on December 8, 2011. (ECF No. 9 at 54.)
The allegations in plaintiff’s amended complaint are vague and conclusory. It does not

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appear from the exhibits that Dr. Traquina was in charge of plaintiff’s medical care, and plaintiff

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On March 21, 2011, plaintiff was seen by his primary care provider. (ECF No. 9 at 57.)
Plaintiff’s main concern was his “significant glaucoma that is followed by Dr. Crosson,” and
asked to have a second opinion regarding surgical repair of his left eye. The provider noted: “We
have a long discussion regarding medical vs. surgical tx [treatment] and he agrees to go along
with Dr. Crosson’s plan.” (ECF No. 9 at 57.)
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does not indicate how he “let Dr. Traquina know” about plaintiff’s medical condition. Absent

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additional facts, it appears plaintiff named Dr. Traquina as a defendant solely based on his

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supervisorial role as Chief Medical Officer. As noted above, this is insufficient to state a

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cognizable civil rights claim.

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Moreover, the documents provided by plaintiff demonstrate that he was consistently

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prescribed eye drops to treat his glaucoma. If plaintiff believes that he should have been provided

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different or stronger eye drops, such belief constitutes a difference of opinion rather than

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deliberate indifference. In addition, the doctor’s notes confirm that plaintiff would go blind

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without surgical intervention, which plaintiff apparently refused.

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Thus, it is unclear whether plaintiff can amend his complaint to state a cognizable claim of

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deliberate indifference. However, in an abundance of caution, plaintiff will be granted another

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opportunity to amend.

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

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

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

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

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

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

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

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

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

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leave to file a second amended complaint.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.
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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. 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 order to

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make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement 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 a second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. Plaintiff should file his second amended complaint on the form provided by

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the court.

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Plaintiff is advised that no further exhibits are required. The exhibits filed by plaintiff are
now part of the court record and may be referenced by any party.

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

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1. Plaintiff’s amended complaint is dismissed;

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint; failure to file a second

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed; and

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3. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint.
Dated: August 22, 2014

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