Cramer v. Horowitz et al

Filing 12

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/9/2015 GRANTING plaintiff's 3 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; t he allegations are sufficient to state a claim against defendant Horowitz; all remaining defendants are DISMISSED with leave to amend within 30 days, plaintiff is not obligated to amend his complaint; the Clerk shall provide plaintiff with forms for service which plaintiff may complete and return within 30 days; plaintiff shall return the Notice of Submission or Amendment with response; AND RECOMMENDING that plaintiff's 2 motion for preliminary injunction be denied. 2 Motion referred to Judge Troy L. Nunley; Objections to the findings and recommendations due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LORENZO CRAMER,

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No. 2:14-cv-1472-TLN-EFB P

Plaintiff,

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v.

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EVALYN HOROWITZ, et al.,

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ORDER GRANTING IFP AND SCREENING
COMPLAINT AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint, he has filed an application to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915, and a motion for a preliminary injunction.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Screening Order

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The complaint names Dr. Horowitz, Dr. Smith, Dr. Hawkins, Warden Knipp, and Federal

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Receiver Clark Kelso as defendants. For the limited purposes of § 1915A screening and liberally

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construed, the complaint states a potentially cognizable Eighth Amendment deliberate

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indifference to medical needs claim against defendant Horowitz, plaintiff’s primary care
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physician. See ECF No. 1 (alleging that defendant Horowitz was dismissive of plaintiff’s

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repeated complaints of pain following an injury in June 2013, that she reduced and ultimately

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stopped plaintiff’s pain medication based on only “sparse” information suggesting that plaintiff

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was selling it, and that she really just wanted to limit all inmates to the “basic pain meds”). As

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discussed below, the complaint fails to state a claim against any of the other named defendants.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009). In sum, plaintiff must identify the particular person or persons who violated his rights.

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He must also plead facts showing how that particular person was involved in the alleged

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violation.

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat the condition could result in further significant injury or the unnecessary and wanton

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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,

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delay or intentional interference with medical treatment or by the way in which medical care is

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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

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To act with deliberate indifference, a prison official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he must also

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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if
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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing

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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate

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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,

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884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,

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even if some treatment is prescribed, may constitute deliberate indifference in a particular case.

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Id.

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It is important to differentiate common law negligence claims of malpractice from claims

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predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.

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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.

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1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004).

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Plaintiff fails to state a claim against defendants Hawkins, Knipp, or Kelso because he

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does not include any factual allegations linking them to a violation of a federal constitutional or

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statutory right. The alleged supervisory roles of Knipp and Kelso are not a proper basis for

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liability. Plaintiff’s naming of defendants Knipp and Kelso simply because their positions are “all

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the way to the top,” see ECF No. 1 at 7, falls far short of what is required to demonstrate their

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involvement or personal participation in any constitutional deprivation.

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Plaintiff also fails to state a claim against defendant Smith, the Chief Physician and

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Surgeon at Mule Creek State Prison. Plaintiff claims that Smith was deliberately indifferent to

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his medical needs because in responding to plaintiff’s administrative appeals complaining of

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defendant Horowitz’s conduct, Smith “sided with his staff” and their choice not to provide

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diagnostic tests to determine the extent of plaintiff’s injury. Unlike defendant Horowitz,

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defendant Smith was not plaintiff’s primary care physician. Smith’s involvement in plaintiff’s

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care was limited to his review of plaintiff’s administrative appeals. Smith’s opinion that his staff

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had provided plaintiff with proper medical care does not amount to deliberate indifference to

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plaintiff’s medical needs. Moreover, there are no constitutional requirements regarding how a

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grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding
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that prisoner’s claimed loss of a liberty interest in the processing of his appeals does not violate

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due process because prisoners lack a separate constitutional entitlement to a specific prison

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grievance system). Thus, plaintiff may not impose liability on defendant Smith simply because

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he played a role in processing plaintiff’s inmate appeals.

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Accordingly, plaintiff may either proceed only on the Eighth Amendment claim against

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defendant Horowitz or he may amend his complaint to attempt to cure the deficiencies in his

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claims against the other named defendants. Plaintiff is not obligated to amend his complaint.

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Any amended complaint must cure the deficiencies identified above and also adhere to the
following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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IV.

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Motion for Preliminary Injunction
Plaintiff claims that since he was injured during a fight on June 13, 2013, he has

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experienced “excruciating” pain in his shoulders and neck. ECF No. 2 at 2. He states that on

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October 21, 2013, a radiologist determined that he “suffered severe degenerative changes in the

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cervical region on the spine.” Id. He moves for a preliminary injunction to prevent defendants

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from interfering with his ability to receive “medical treatment in the form of adequate diagnostic

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procedures, neck-stability equipment, and surgery (if necessary).” Id. at 3. He claims he will

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suffer irreparable harm “if the injunction is not granted” because there will be “an increase in pain

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and further injury.” Id.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Plaintiff fails to show that he is likely to succeed on the merits. This action is only at the

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pleading stage and no defendant has been served. The only claim found to be cognizable is the

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Eighth Amendment claim against defendant Horowitz, and that determination is made on

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allegations only. There is no evidence presented showing that plaintiff is likely to succeed on the

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merits of that claim. Nor is there any evidence that plaintiff is likely to suffer irreparable harm in

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the absence of preliminary relief. While plaintiff claims his pain will increase and he will be

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further injured, his statement is not sworn and apart from his general belief in this regard, there is

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no evidence that he will be irreparably injured absent preliminary relief. There is no evidence

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suggesting that plaintiff is in need of diagnostic testing, a neck stability device, or surgery. Nor is

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there any evidence that such medical procedures would alleviate plaintiff’s alleged pain.

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During the course of this action, plaintiff will have the opportunity to conduct discovery

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and present evidence. Presently, however, plaintiff fails to make a clear showing that he is

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entitled to the extraordinary remedy of a preliminary injunction. Plaintiff also has not shown that

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the balance of equities tips in his favor or that the injunction he seeks is in the public interest.

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Therefore, the court recommends that plaintiff’s motion for a preliminary injunction be denied.

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V.

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Summary of Order and Recommendation
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 3) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the CDCR filed concurrently herewith.

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3. The allegations in the pleading are sufficient at least to state a potentially

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cognizable Eighth Amendment deliberate indifference to medical needs claim

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against defendant Horowitz. All remaining defendants are dismissed with leave to

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amend within 30 days of service of this order. Plaintiff is not obligated to amend

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his complaint.

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4. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a

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copy of the June 6, 2014 complaint (ECF No. 1), one USM-285 form and

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instructions for service of process on defendant Horowitz. Within 30 days of

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service of this order plaintiff may return the attached Notice of Submission of

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Documents with the completed summons, the completed USM-285 form, and two

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copies of the endorsed complaint. The court will transmit them to the United

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States Marshal for service of process pursuant to Rule 4 of the Federal Rules of

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Civil Procedure. Defendant Horowitz will be required to respond to plaintiff’s

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allegations within the deadlines stated in Rule 12(a)(1) of the Federal Rules of

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Civil Procedure.
5. Failure to comply with this order may result in a recommendation that this action
be dismissed.
Further, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary
injunction (ECF No. 2) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 9, 2015.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LORENZO CRAMER,

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No. 2:14-cv-1472-TLN-EFB P

Plaintiff,

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v.

NOTICE OF SUBMISSION OF
DOCUMENTS

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EVALYN HOROWITZ, et al.,

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Defendants.

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Plaintiff hereby submits the following documents in compliance with the court’s
Screening Order:

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completed summons form

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completed forms USM-285

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copies of the endorsed June 6, 2014 complaint

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Dated:

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