Archini v. Sanders, et al.

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 09/28/15 ordering plaintiff's complaint is dismissed with leave to amend. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. Plaintiff's motion for appointment of counsel 7 is denied. (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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GUY ROBERT ARCHINI,

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Plaintiff,
vs.

ORDER

ROXANNE SANDERS, et al.,
Defendants.

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No. 2:14-cv-1392-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1) and motion to appoint

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counsel (Doc. 7)

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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). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s claims are somewhat vague. He alleges he had surgery on a complex

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fracture that was not successful. He states he has filed numerous inmate appeals regarding the

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unresolved medical malpractice issues, which “are the core of this complaint . . . .” (Compl.,

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Doc. 1, at 6). He also indicates there were some disciplinary actions and conduct credit loss

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relating to the inmate appeals he filed. It appears that plaintiff and his doctor, Dr. Sanders,

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disagree as to what pain medication plaintiff requires, and that Dr. Sanders refused to renew a

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pain medication prescribed by a different physician. Plaintiff requested assignment to a different

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doctor, but the request was denied.

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II. DISCUSSION
Based on the statement of facts set forth in the complaint, the court is unsure at

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this time what claims plaintiff is attempting to state. It would appear that plaintiff may be

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claiming a violation of his Eighth Amendment rights, based on the denial of adequate pain

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medication. However, it is possible that he is also attempting to challenge some disciplinary

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proceedings, as he sets forth some facts relating to his RVR-Hearing. Either claim is

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inadequately plead.

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To the extent plaintiff is attempting to challenge his disciplinary proceedings, it
appears that plaintiff lost good time credits therein, which would render this a habeas claim not a
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civil rights violation. When a state prisoner challenges the legality of his custody and the relief

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he seeks is a determination that he is entitled to an earlier or immediate release, such a challenge

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is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a

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writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v.

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Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586

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(9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or

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declaratory relief alleges constitutional violations which would necessarily imply the invalidity of

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the prisoner’s underlying conviction or sentence, or the result of a prison disciplinary hearing

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resulting in imposition of a sanction affecting the overall length of confinement, such a claim is

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not cognizable under § 1983 unless the conviction or sentence has first been invalidated on

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appeal, by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512

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U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were

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akin to malicious prosecution action which includes as an element a finding that the criminal

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proceeding was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th

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Cir. 1997) (concluding that § 1983 claim not cognizable because allegations of procedural

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defects were an attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at

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824 (concluding that § 1983 claim was cognizable because challenge was to conditions for parole

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eligibility and not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74

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(2005) (concluding that § 1983 action seeking changes in procedures for determining when an

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inmate is eligible for parole consideration not barred because changed procedures would hasten

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future parole consideration and not affect any earlier parole determination under the prior

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procedures).

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In particular, where the claim involves the loss of good-time credits as a result of

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an adverse prison disciplinary finding, the claim is not cognizable. See Edwards v. Balisok, 520

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U.S. 641, 646 (1987) (holding that § 1983 claim not cognizable because allegations of procedural

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defects and a biased hearing officer implied the invalidity of the underlying prison disciplinary
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sanction of loss of good-time credits); Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997); cf.

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Ramirez v. Galaza, 334 F.3d 850, 858 (9th. Cir. 2003) (holding that the favorable termination

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rule of Heck and Edwards does not apply to challenges to prison disciplinary hearings where the

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administrative sanction imposed does not affect the overall length of confinement and, thus, does

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not go to the heart of habeas); see also Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2014)

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(discussing loss of good-time credits); Nettles v. Grounds, 788 F.3d 992 (9th Cir. 2015)

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(discussing loss of good-time credits). If a § 1983 complaint states claims which sound in

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habeas, the court should not convert the complaint into a habeas petition. See id.; Trimble, 49

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F.3d at 586. Rather, such claims must be dismissed without prejudice and the complaint should

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proceed on any remaining cognizable § 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512

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U.S. at 487; Trimble, 49 F.3d at 585.

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As to any potential claim relating to his medical care, the treatment a prisoner

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receives in prison and the conditions under which the prisoner is confined are subject to scrutiny

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under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v.

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McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth

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Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity,

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and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may,

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however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation,

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medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986).

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A prison official violates the Eighth Amendment only when two requirements are met: (1)

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

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

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

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at 834. Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently

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culpable 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 1050,

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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, based on the limited facts set forth in the complaint, it would appear that

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plaintiff either disagrees with the treatment Dr. Sanders is providing or believes Dr. Sanders’

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treatment is inadequate amounting to medical malpractice, in which case no claim under the

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Eighth Amendment can be found. However, it is possible that plaintiff is attempting to state a

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denial of treatment claim, in which case the claim may be amended, and sufficient facts alleged,

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in order to cure the defects noted. Specifically, in order to state a claim for denial of medical

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treatment sufficient to state a claim under the Eighth Amendment, plaintiff must allege more than

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just a disagreement with his provider. Plaintiff must show that the defendant acted with a

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deliberate indifference to his serious illness or injury, not simply that he prefers a different

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doctor’s treatment.
Finally, plaintiff names several other individuals in his complaint, none of whom

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he has alleged any facts and who all appear to be involved in his inmate grievance process, not

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actually involved in his medical treatment.

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

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connection or link between the actions of the named defendants and the alleged deprivations.

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See Monell v. Dep’t 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). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the

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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged

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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Prisoners have no stand-alone due process rights related to the administrative
grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.
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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

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inmates to a specific grievance process). Because there is no right to any particular grievance

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process, it is impossible for due process to have been violated by ignoring or failing to properly

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process grievances. Numerous district courts in this circuit have reached the same conclusion.

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See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

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process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

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(N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

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grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL

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29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

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a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

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(N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

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properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment

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right to petition the government through the prison grievance process. See Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with the grievance process may, in

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certain circumstances, implicate the First Amendment.

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Therefore, to the extent plaintiff is attempting to state a claim against prison
officials who denied his 602-inmate grievance, such a claim is not viable and is not curable.
III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff also seeks the appointment of counsel. The United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff has demonstrated sufficient writing ability and legal knowledge to

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articulate his claim. While the court finds his claim too vague as currently plead in his

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complaint, it appears the deficiencies are not due to his inability to articulate his claim, but rather

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stem from the lack of facts set forth in the complaint. His claims relate to the medical treatment

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he is receiving in prison, an area of the law that is fairly well-settled and not overly complex, at

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least as related to the facts as alleged in this case. At this early stage of the proceedings, the court

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cannot say that plaintiff is likely to prevail in the lawsuit. In addition, the only grounds raised in

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plaintiff’s motion stem from his lack of education. Lack of education alone is not sufficient,

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especially where, as here, plaintiff appears able to articulate his thoughts and claims.

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IV. CONCLUSION

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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 prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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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 some of the defects identified in this order cannot be cured by

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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) plaintiff may file an amended complaint which does not allege the

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claims identified herein as incurable, in which case such claims will be deemed abandoned and

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the court will address the remaining claims; or (2) plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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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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Plaintiff’s complaint is dismissed with leave to amend;

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

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service of this order; and

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3.

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DATED: September 28, 2015

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Plaintiff’s motion for the appointment of counsel (Doc. 7) is denied.

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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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