Scherffius v. Smith et al

Filing 22

ORDER signed by Magistrate Judge Dale A. Drozd on 03/14/15 ordering plaintiff's amended complaint 20 is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. The clerk of the court is directed to send plaintiff the court's form for filing a civil rights action. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL E. SCHERFFIUS,

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No. 2:13-cv-1277 DAD P

Plaintiff,
v.

ORDER

CHRISTOPHER SMITH et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed
pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff‟s amended complaint.
SCREENING REQUIREMENT

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

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governmental entity or an 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 the prisoner has raised claims

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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. See 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 (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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „a short and plain

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statement of the claim showing that the pleader is entitled to relief,‟ in order to „give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. 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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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 actions of
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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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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BACKGROUND

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In his amended complaint, plaintiff has identified fourteen doctors and other prison

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medical personnel as the defendants in this action. As in his original complaint, plaintiff alleges

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that he suffers from a spinal condition and that, since 2007, defendants have failed to provide him

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with adequate medical care. In this regard, plaintiff alleges that the defendants have ignored his

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medical condition as well as his pain and suffering in violation of his rights under the Eighth

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Amendment. In terms of relief, plaintiff requests the award of damages and injunctive relief.

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(Am. Compl at 9-30 & Exs.)

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DISCUSSION
The allegations in plaintiff‟s amended complaint remain so vague and conclusory that the

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

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relief. The amended complaint does not contain a short and plain statement as required by Fed.

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R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice to the defendants and must allege facts that support the elements of the claim

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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support his claims. Id. Because plaintiff has failed to comply with the

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requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be dismissed. In the

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interests of justice, the court will grant plaintiff leave to file a second amended complaint.

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If plaintiff chooses to file a second amended complaint, he must allege facts

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demonstrating how the conditions complained of resulted in a deprivation of his federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

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amended complaint must allege in specific terms how each named defendant was involved in the
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deprivation of plaintiff‟s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant‟s actions and the claimed deprivation.

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Rizzo, 423 U.S. 362; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at

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743. Vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. Ivey, 673 F.2d at 268.

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It remains clear from the allegations of plaintiff‟s amended complaint that he is

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dissatisfied with the medical care he has received in connection with his spinal condition while

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incarcerated. However, as the court previously advised plaintiff, the United States Supreme

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Court has held that inadequate medical care does not constitute cruel and unusual punishment

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cognizable under § 1983 unless the mistreatment rises to the level of “deliberate indifference to

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serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In general, deliberate

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indifference may be shown when prison officials deny, delay, or intentionally interfere with

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

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

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In any second amended complaint plaintiff elects to file, he will need to allege specific

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facts demonstrating how each named defendant‟s actions rose to the level of “deliberate

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indifference.” Plaintiff is advised that mere differences of opinion between a prisoner and prison

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medical staff or between medical professionals as to the proper course of treatment for a medical

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condition do not give rise to a § 1983 claim. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051,

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1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild,

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891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In

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this regard, plaintiff‟s difference opinion with the defendant doctors about the medication that

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should be administered to him, for example, does not by itself state a cognizable claim under the

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Eighth Amendment.

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In addition, before it can be said that a prisoner‟s civil rights have been abridged, “the

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indifference to his medical needs must be substantial. Mere „indifference,‟ „negligence,‟ or

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„medical malpractice‟ will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d

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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Wood v. Housewright, 900
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F.2d 1332, 1334 (9th Cir. 1990) (“In determining deliberate indifference, we scrutinize the

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particular facts and look for substantial indifference in the individual case, indicating more than

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mere negligence or isolated occurrences of neglect.”). The court observes that throughout

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plaintiff‟s amended complaint, he acknowledges that defendant doctors and medical personnel

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have seen him dozens of times, referred him to specialists and for various diagnostic testing, and

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prescribed him pain medication and provided him physical therapy. In this regard, plaintiff‟s own

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allegations appear to belie any claim that the named defendants have ignored his spinal condition

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or failed to treat it in violation of his rights under the Eighth Amendment.

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Finally, the court notes that delays in providing medical care may manifest deliberate

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indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising

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from delay in providing care, however, a plaintiff must allege facts showing that the delay was

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harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;

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Wood, 900 F.2d at 1335; Hunt v. Dental Dep‟t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v.

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Nevada Bd. of State Prison Comm‟rs, 766 F.2d 404, 407 (9th Cir. 1985). “A prisoner need not

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show his harm was substantial; however, such would provide additional support for the inmate‟s

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claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060.

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Plaintiff is reminded that the court cannot refer to prior pleadings in order to make his

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second amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a second amended complaint, the prior pleading no longer serves

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any function in the case. Therefore, in any second amended complaint plaintiff may elect to file,

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

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sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s amended complaint (Doc. No. 20) 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 to this case and must be labeled “Second Amended Complaint”; failure

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to file a second amended complaint in accordance with this order will result in a recommendation

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that this action be dismissed without prejudice; and

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3. The Clerk of the Court is directed to send plaintiff the court‟s form for filing a civil

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rights action.

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Dated: March 14, 2015

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DAD:9
sche1277.14am

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