Bernard L. Smith v. Hawkins

Filing 20

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/27/15 DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM- 285 Forms within 30 days. Service is appropriate for Hawkins. Clerk to send plaintiff: instructi on sheet, 1 Summons, 1 USM-285 Form, and 1 copy of the Complaint filed on 12/24/14. It is RECOMMENDED that plaintiff's motion for injunctive relief (ECF No. 12 ) be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARD L. SMITH, 12 Plaintiff, 13 14 No. 2:14-cv-2222-KJM-EFB P v. HAWKINS, et al., 15 Defendants. SCREENING ORDER AND ORDER GRANTING IFP; FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION FOR INJUNCTIVE RELIEF BE DENIED 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. In addition to filing a complaint, he has filed an application to proceed in forma 19 pauperis pursuant to 28 U.S.C. § 1915, and a motion for injunctive relief.1 20 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 ///// 26 27 28 1 The court previously issued findings and recommendations to dismiss this action after plaintiff failed to file a complaint in accordance with a court order. Plaintiff has now complied with that order and those findings and recommendations will therefore be vacated. 1 1 II. Screening Requirement and Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 2 1 2 III. Screening Order The complaint names Dr. Hawkins, Chief Medical Officer Smith, the Pain Committee, 3 Mule Creek State Prison, and Dr. Brahbah as defendants. Plaintiff alleges he has HIV and 4 bladder cancer, accompanied by neuropathy and pain. On January 27, 2014, an HIV specialist 5 allegedly ordered a specific pain medication and treatment plan for plaintiff, but Dr. Hawkins 6 allegedly interfered with that plan by “falsely diagnosing” plaintiff and falsely claiming that 7 plaintiff had refused to be interviewed as part of an appeal plaintiff was pursuing. After plaintiff 8 filed the appeal against Dr. Hawkins, Dr. Hawkins allegedly retaliated against plaintiff by 9 continuing to interfere with and deny plaintiff any treatment for his pain. Plaintiff claims that 10 CMO Smith allowed subordinates to “choose which Dr reports can and will be accepted,” which 11 rendered plaintiff’s pain treatment ineffective. Plaintiff also claims that Mule Creek State Prison 12 “has failed to treat the pain and safety,” and “violated the Fourteenth Amendment to life.” In an 13 unrelated claim, plaintiff alleges he suffers from post-traumatic stress disorder as a result of being 14 stabbed eight times. He claims that defendant Brahban put his safety at risk by stating that 15 plaintiff does not suffer from post-traumatic stress disorder. 16 For the limited purposes of § 1915A screening and liberally construed, the complaint 17 states a potentially cognizable First Amendment retaliation and Eighth Amendment deliberate 18 indifference to medical needs claims against defendant Hawkins. However, the complaint fails to 19 state a claim against Chief Medical Officer Smith, the Pain Committee, and Mule Creek State 20 Prison, and the claims against Dr. Brahbah appear to be improperly joined. Claims against these 21 defendants are therefore dismissed with leave to amend. 22 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 23 constitutional or statutory right; and (2) that the violation was committed by a person acting under 24 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 25 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 26 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 27 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 28 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 3 1 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 2 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 3 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights. 4 He must also plead facts showing how that particular person was involved in the alleged 5 violation. 6 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 7 plaintiff must establish that he had a serious medical need and that the defendant’s response to 8 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 9 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 10 treat the condition could result in further significant injury or the unnecessary and wanton 11 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 12 delay or intentional interference with medical treatment or by the way in which medical care is 13 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 14 To act with deliberate indifference, a prison official must both be aware of facts from 15 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 16 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 17 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 18 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 19 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 20 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 21 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 22 Id. 23 It is important to differentiate common law negligence claims of malpractice from claims 24 predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment. 25 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 26 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 27 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 28 F.3d 1051, 1057 (9th Cir. 2004). 4 1 Plaintiff fails to state a claim against defendant CMO Smith because the complaint does 2 not include any factual allegations linking him to a violation of a federal constitutional or 3 statutory right. The alleged supervisory role of Smith, as Chief Medical Officer, is not a proper 4 basis for liability. 5 In addition, the “Pain Committee” is not a proper defendant because the committee itself 6 is not a “person acting under color of state law” and plaintiff may not bring suit against unnamed 7 defendants. If plaintiff wishes to name an individual member of the committee as a defendant, he 8 must identify that individual by name and allege that the individual personally participated in the 9 violation of a federal constitutional or statutory right. 10 Mule Creek State Prison is also not a “person” subject to a § 1983 lawsuit. Moreover, 11 state agencies, such as CDCR and its prisons, are immune from suit under the Eleventh 12 Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Lucas v. Dep’t 13 of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that prisoner’s Eighth 14 Amendment claims against CDCR for damages and injunctive relief were barred by Eleventh 15 Amendment immunity); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) 16 (Eleventh Amendment immunity extends to state agencies). 17 Lastly, the claim against defendant Brahbah appears to be completely unrelated to the 18 claims against defendant Hawkins. The claims against Hawkins and Brahbah could not all be 19 properly joined together in a single action, as they involve discrete events that do not arise out the 20 same occurrence and involve a common question of law or fact.2 See Fed. R. Civ. P. 20(a)(2). 21 ///// 22 ///// 23 24 25 26 27 28 2 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 5 1 Plaintiff is granted leave to amend his claim against defendant Brahbah, only if he can cure these 2 defects. Otherwise, plaintiff must pursue his claim against Brahbah in a separate action. 3 Accordingly, plaintiff may either proceed only on the First Amendment and Eighth 4 Amendment claims against defendant Hawkins, or he may amend his complaint to attempt to cure 5 the deficiencies in his claims against the other named defendants. Plaintiff is not obligated to 6 amend his complaint. 7 8 Any amended complaint must cure the deficiencies identified above and also adhere to the following requirements: 9 Any amended complaint must identify as a defendant only persons who personally 10 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 11 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 12 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 13 legally required to do that causes the alleged deprivation). 14 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 15 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 16 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 17 Any amended complaint must be written or typed so that it so that it is complete in itself 18 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 19 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 20 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 21 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 23 1967)). 24 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 25 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 26 See E.D. Cal. Local Rule 110. 27 ///// 28 ///// 6 1 IV. Motion for Injunctive Relief 2 Plaintiff requests a temporary restraining order requiring that he receive the pain 3 medication that was ordered for him by the HIV specialist in January of 2014. Plaintiff claims 4 that without the medication, he is in great pain. He claims the pain prevents him from exercising, 5 limits his mobility, and puts his life in danger because he cannot defend himself. 6 A temporary restraining order may be issued upon a showing “that immediate and 7 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 8 in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status 9 quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no 10 longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). “The 11 standards for granting a temporary restraining order and a preliminary injunction are identical.” 12 Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int’l 13 Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an 14 analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary 15 restraining order). 16 A preliminary injunction will not issue unless necessary to prevent threatened injury that 17 would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc. 18 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 19 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 20 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 21 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party 22 must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable 23 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 24 injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 25 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has 26 also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing 27 the elements of the preliminary injunction test, so that a stronger showing of one element may 28 offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild 7 1 Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions 2 going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support 3 issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. 4 In cases brought by prisoners involving conditions of confinement, any preliminary injunction 5 “must be narrowly drawn, extend no further than necessary to correct the harm the court finds 6 requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18 7 U.S.C. § 3626(a)(2). 8 9 The merits of plaintiff claims against Dr. Hawkins are premised on the allegation that he was deliberately indifferent to plaintiff’s serious medical needs by failing to treat his pain and by 10 interfering with the pain medication plan that was ordered by the HIV specialist. However, 11 plaintiff does not establish that he is likely to succeed on this claim and a preliminary injunction 12 requiring Mule Creek State Prison medical staff to provide him with a specific pain medication 13 must be denied. Plaintiff’s motion is not accompanied by a sworn declarations or any other 14 evidence establishing a likelihood of success in this action, or that the injunction sought is 15 necessary to preserve the court’s ability to grant effective relief on his claim and that it is the least 16 intrusive means for doing so. The allegations against Dr. Hawkins, while sufficient to meet the 17 liberal pleading requirements for stating a cognizable claim for relief, do not demonstrate that 18 plaintiff is being denied any form of pain management or that he will suffer irreparable harm 19 without the court’s intervention. 20 Plaintiff also fails to present evidence establishing that the balance of equities tips in his 21 favor. He claims the fact that he has had a chronic illness for nineteen years “outweighs any 22 unjustifiable acts presented by the Defendants.” ECF No. 12 at 1. However, plaintiff does not 23 describe in any detail the purportedly “unjustifiable acts” or show how those act relate, if at all, to 24 his nineteen years of suffering. There is also no showing that the requested injunctive relief is in 25 the public interest. Thus, plaintiff has not made the showing required to meet his burden as the 26 party moving for preliminary injunctive relief, and his request must be denied. 27 ///// 28 ///// 8 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 8) is granted. 3 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 4 in accordance with the notice to the CDCR filed concurrently herewith. 5 3. The November 18, 2014 findings and recommendations (ECF No. 16) are vacated. 6 4. The allegations in the pleading are sufficient at least to state potentially cognizable 7 First Amendment retaliation and Eighth Amendment deliberate indifference to 8 medical needs claims against defendant Hawkins. The remaining claims and 9 defendants are dismissed with leave to amend within 30 days of service of this 10 11 order. Plaintiff is not obligated to amend his complaint. 5. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a 12 copy of the December 24, 2014 complaint (ECF No. 19), one USM-285 form and 13 instructions for service of process on defendant. Within 30 days of service of this 14 order plaintiff may return the attached Notice of Submission of Documents with 15 the completed summons, the completed USM-285 form, and two copies of the 16 endorsed complaint. The court will transmit them to the United States Marshal for 17 service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure. 18 Defendant Hawkins will be required to respond to plaintiff’s allegations within the 19 deadlines stated in Rule 12(a)(1) of the Federal Rules of Civil Procedure. 20 21 22 23 6. 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 injunctive relief (ECF No. 12) be denied. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: April 27, 2015. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BERNARD L. SMITH, 11 Plaintiff, 12 13 No. 2:14-cv-2222-KJM-EFB P v. NOTICE OF SUBMISSION OF DOCUMENTS HAWKINS, et al., 14 Defendants. 15 16 17 Plaintiff hereby submits the following documents in compliance with the court’s Screening Order: 18 19 1 completed summons form 20 1 completed forms USM-285 21 2 copies of the endorsed December 24, 2014 complaint 22 23 Dated: 24 25 ____________________________ 26 27 28 11

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