King v. Wang et al

Filing 39

ORDER signed by Magistrate Judge Deborah Barnes on 03/31/17 ordering that the Clerk's Office shall send plaintiff a blank civil rights complaint form. Within 30 days from the date of service of this order, plaintiff must either: File a second amended complaint curing the deficiencies identified in this order, or notify the court in writing that he does not wish to file a second amended complaint and he is willing to proceed only on the claims found to be cognizable in this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID KING,

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Plaintiff,

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No. 2:14-cv-1817 KJM DB P

v.

ORDER

WANG, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action pursuant to 42 U.S.C. § 1983. On February 26, 2016, defendant Nurse Wang’s

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motion to dismiss was granted, and plaintiff’s complaint was dismissed with leave to amend.

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(ECF No. 32.) Now pending is plaintiff’s first amended complaint for screening.

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I.

Screening Requirement

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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At all relevant times, plaintiff was an inmate housed at Folsom State Prison (“FSP”) in

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Folsom, California. He brings suit against Nurse Wang and the FSP Health Care Manager III.

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On August 17, 2013, plaintiff told Nurse Wang that his jaw is swollen, he has a toothache,

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and he is in terrible pain. Nurse Wang responded that there is nothing she can do and directed

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plaintiff to file a medical request. Plaintiff then suffered four days of pain, headaches and little

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sleep before he was treated for an abscessed tooth. Plaintiff claims dental emergencies require

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immediate care and not the submission of a medical request, and he accuses the Health Care

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Manager III of failing to properly supervise staff.

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Plaintiff seeks damages in the amount of $40,000.
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IV.

Discussion
Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the

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prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth

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Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and

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the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir. 1997) (en banc).

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A serious medical need exists if the failure to treat the condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists, and

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he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a

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defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “It is enough

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that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Id. at

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842.

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

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at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a

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plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th

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Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

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1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In

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this regard, “[a] prisoner need not show his harm was substantial; however, such would provide

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additional support for the inmate’s claim that the defendant was deliberately indifferent to his

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needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at

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1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that

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inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

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1989) (per curiam). A failure to competently treat a serious medical condition, even if some
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treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

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Plaintiff accuses Nurse Wang of failing to provide any care after plaintiff complained of

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terrible pain and swelling; instead, she directed plaintiff to file a medical request. Although prison

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regulations include directives concerning a dental emergency, including the provision of

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immediate care without regard to the filing of a medical request, plaintiff was forced to wait a

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number of days in pain before he was examined by a dentist for an abscessed tooth. Plaintiff has

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sufficiently alleged an Eighth Amendment medical indifference claim against Nurse Wang.

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Plaintiff next accuses the Health Care Manager III of failing to supervise staff regarding
the provision of emergency dental care. These allegations fail to meet the minimum pleading

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standards. Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate

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that each defendant personally participated in the deprivation of his rights. See Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between the actions

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of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 691, 695 (1978).

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To the extent plaintiff seeks to impose liability on the basis of the supervisory role of this

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defendant, his claim fails. Government officials may not be held liable for the actions of their

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subordinates under a theory of respondeat superior. Monell, 436 U.S. at 691. Liability may be

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imposed on supervisory defendants under § 1983 only if the supervisor: (1) personally

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participated in the deprivation of constitutional rights or directed the violations or (2) knew of the

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violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). This defendant cannot be held liable for

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being generally deficient in his or her supervisory duties.

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V.

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Conclusion
The pleading states an Eighth Amendment medical indifference claim against Nurse

Wang. All other claims and defendants must be dismissed.
The court will grant plaintiff the opportunity to file a second amended complaint to cure

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noted defects, to the extent he believes in good faith he can do so. Noll v. Carlson, 809 F.2d 1446,

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1448-49 (9th Cir. 1987). If plaintiff chooses to amend, he must demonstrate that the alleged acts
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resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set

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forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678

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(quoting Twombly, 550 U.S. at 555). Plaintiff should note that although he has been given the

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opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully read this screening

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order and focus his efforts on curing the deficiencies set forth above.

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If plaintiff does not wish to file a second amended complaint, and he is agreeable to

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proceeding only on the claim found to be cognizable, he may file a notice informing the court that

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he does not intend to amend, and he is willing to proceed only on his cognizable claim. The court

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then will recommend dismissal of the remaining claims and defendant will be directed to file a

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responsive pleading.

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If plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it must

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state what each named defendant did that led to the deprivation of plaintiff’s constitutional rights,

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Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted).

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Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the prior or

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superseded pleading,” Local Rule 220.
For these reasons, IT IS HEREBY ORDERED that The Clerk’s Office shall send plaintiff

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a blank civil rights complaint form;

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1. Within thirty (30) days from the date of service of this order, plaintiff must either:

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a. File a second amended complaint curing the deficiencies identified in this

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order, or

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b. Notify the court in writing that he does not wish to file a second amended

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complaint and he is willing to proceed only on the claim found to be

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cognizable in this order; and

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2. If plaintiff fails to comply with this order, the undersigned will recommend that
this action be dismissed for failure to obey a court order and failure to prosecute.
Dated: March 31, 2017

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DLB7;
/Inbox/Substantive;king1817.scrn.1AC

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