Duran v. California Department of Corrections and Rehabilitation, et al,

Filing 12

ORDER signed by Magistrate Judge Craig M. Kellison on 05/12/17 ordering plaintiff's amended complaint is dismissed with leave to amend. Plaintiff shall file an 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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JASON DURAN,

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No. 2:14-cv-1080-CMK-P

Plaintiff,
vs.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,

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Defendants.
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Plaintiff, a proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. Pending before the court is plaintiff’s amended complaint (Doc. 11). Plaintiff’s original

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complaint was dismissed, with leave to amend, for failure to state a claim due to vague

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allegations.

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As plaintiff was previously informed, the court is required to screen complaints

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brought by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion

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thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be

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granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28
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U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “short and plain statement of the claim showing that the pleader is entitled

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to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and

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directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P.

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8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the

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plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts

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by specific defendants which support the claims, vague and conclusory allegations fail to satisfy

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this standard. Additionally, it is impossible for the court to conduct the screening required by

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law when the allegations are vague and conclusory.
I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s amended complaint expounds some upon the allegations set forth in his

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original complaint. The basic claim remains the same, that his Eighth Amendment rights were

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violated by the California Department of Corrections and Rehabilitation for failure to provide sex

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offender treatment while he was incarcerated. In his amended complaint, he alleges he sought

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treatment from staff at Avenal State Prison, including Dr. Smith, but was denied as no such

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programs existed. He has named as defendants the California Department of Corrections, the

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Warden of Avenal State Prison, the Director of the Department of Corrections, and Dr. Smith.

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II. DISCUSSION
Again, plaintiff was informed that the treatment a prisoner receives in prison and

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the conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509

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U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment

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“embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison
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officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and

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personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official

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violates the Eighth Amendment only when two requirements are met: (1) objectively, the

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official’s act or omission must be so serious such that it results in the denial of the minimal

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civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted

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unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834.

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Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable

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mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at

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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition

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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical
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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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Here, plaintiff alleges the defendants failed to provide him sex offender treatment.

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He claims he sought sex offender treatment, but was told no such treatment was offered despite

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offering psychological treatment to every other psychological disorder. However, he fails to

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allege he suffered from a psychological disorder necessitating treatment. It appears he was

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convicted of some type of sex crime, but a conviction does not equate to a psychological

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disorder. Without a diagnosis of a psychological disorder, there can be no showing that the

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defendants were deliberately indifferent to plaintiff’s medical needs. Only failure to treat an

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illness that is sufficiently serious can give rise to a claim under the Eighth Amendment. Plaintiff

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fails to allege he suffered from any serious mental illness requiring treatment.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff will be provided one more opportunity to file an amend

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complaint prior to the dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126,

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1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an amended

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complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). Thus, following dismissal with leave to amend, all claims and defendants alleged in

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the original complaint which are not alleged in the amended complaint are waived. See King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court
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cannot refer to the prior pleading in order to make plaintiff's amended complaint complete. See

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Local Rule 220. An amended complaint must be complete in itself without reference to any prior

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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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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s amended complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: May 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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