Hicks v. Hamkar et al

Filing 5

ORDER signed by Magistrate Judge Dale A. Drozd on 3/6/2014 GRANTING plaintiff's 2 motion to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED with 30 days to file an amended complaint; and the Clerk shall send plaintiff a form for filing a civil rights action. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HICKS, 12 13 14 15 No. 2:13-cv-1687 DAD P Plaintiff, v. ORDER BEHROZ HAMKAR, Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 21 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 2 1915(b)(2). 3 SCREENING REQUIREMENT 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 6 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 7 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 8 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 9 U.S.C. § 1915A(b)(1) & (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989); Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 17 18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 However, in order to survive dismissal for failure to state a claim a complaint must contain more 22 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 24 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 25 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 26 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 27 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 28 ///// 2 1 The Civil Rights Act under which this action was filed provides as follows: 2 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. 3 4 5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 7 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 8 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 9 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 10 omits to perform an act which he is legally required to do that causes the deprivation of which 11 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 13 their employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisorial position, the causal link between him and the claimed constitutional 15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 17 concerning the involvement of official personnel in civil rights violations are not sufficient. See 18 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). PLAINTIFF’S COMPLAINT 19 20 In his complaint plaintiff has identified Dr. Hamkar, Chief Medical Officer Sayre, Chief 21 Executive Officer McLean, and the California Correctional Health Care Services as the 22 defendants. Therein plaintiff alleges that he suffers from chronic neck and shoulder pain as a 23 result of an arthritic condition. Plaintiff further alleges that prison officials have denied him 24 adequate pain relief. Plaintiff claims that his arthritic condition is complicated by his Hepatitis C 25 condition and that the only adequate pain relief being made available to him causes increased 26 destruction of his liver. In this regard, plaintiff maintains that he is forced to choose between pain 27 relief and liver damage. In terms of relief, plaintiff requests damages and injunctive relief. 28 (Compl. at 2-11) 3 1 DISCUSSION 2 The allegations of plaintiff’s complaint are so vague and conclusory that the court is 3 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 4 complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). 5 Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to 6 the defendants and must allege facts that support the elements of the claim plainly and succinctly. 7 Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege 8 with at least some degree of particularity overt acts which defendants engaged in that support his 9 claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 10 8(a)(2), the complaint must be dismissed. However, the court will grant plaintiff leave to file an 11 amended complaint. 12 If plaintiff chooses to file an amended complaint, he must allege facts demonstrating how 13 the conditions complained of resulted in a deprivation of plaintiff’s federal constitutional or 14 statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). In addition, plaintiff must 15 allege in specific terms how each named defendant was involved in the deprivation of plaintiff’s 16 rights. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 17 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 18 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 19 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights 20 violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 Plaintiff’s complaint suffers from a number of deficiencies. First, the court observes that 22 plaintiff has named a number of supervisory officials as the defendants in this action. However, 23 plaintiff has not alleged what specific acts each of these defendants engaged in to violate his 24 constitutional rights. As noted above, supervisory personnel are generally not liable under § 1983 25 for the actions of their employees under a theory of respondeat superior and, therefore, when a 26 named defendant holds a supervisorial position, the causal link between him and the claimed 27 constitutional violation must be specifically alleged. See Starr v. Baca, 652 F.3d 1202, 1207 (9th 28 Cir. 2011) (supervisory defendant may be held liable under § 1983 only “‘if there exists either (1) 4 1 his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 2 connection between the supervisor’s wrongful conduct and the constitutional violation.’”) 3 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 4 Moreover, insofar as plaintiff wishes to present a claim that he has received 5 constitutionally inadequate medical care, he is advised that he will need to allege in specific terms 6 how any named defendants were “deliberately indifferent” to his serious medical needs in either 7 denying or providing inadequate medical care to him. See Estelle v. Gamble, 429 U.S. 97, 106 8 (1976) (inadequate medical care did not constitute cruel and unusual punishment cognizable 9 under § 1983 unless the mistreatment rose to the level of “deliberate indifference to serious 10 medical needs.”). Deliberate indifference is “a state of mind more blameworthy than negligence” 11 and “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer 12 v. Brennan, 511 U.S. 825, 835 (1994). Before it can be said that a prisoner’s civil rights have 13 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 14 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 15 Lab., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). Likewise, a mere 16 disagreement between plaintiff and defendants as to how defendants provided him with medical 17 care fails to state a cognizable § 1983 claim. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 18 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 19 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 20 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 21 complete in itself without reference to any prior pleading. This is because, as a general rule, an 22 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 23 Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 24 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 25 and the involvement of each defendant must be sufficiently alleged. 26 ///// 27 ///// 28 ///// 5 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 6 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 7 Director of the California Department of Corrections and Rehabilitation filed concurrently 8 herewith. 9 3. Plaintiff’s complaint is dismissed. 10 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 11 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 12 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 13 assigned to this case and must be labeled “Amended Complaint”; failure to file an amended 14 complaint in accordance with this order will result in a recommendation that this action be 15 dismissed without prejudice. 16 5. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil 17 rights action. 18 Dated: March 6, 2014 19 20 21 DAD:9 hick1687.14a 22 23 24 25 26 27 28 6

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