Diaz v. Fox et al

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/20/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 6 is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Plaintiffs motion for temporary restraining order 1 is denied without prejudice.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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No. 2:14-cv-2705 JAM CKD P
Plaintiff,

v.

ORDER

R. FOX, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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I. Screening Standard
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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II. Allegations

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Plaintiff, a diabetic, alleges that he has a medical chrono to receive diabetic snacks at
night, but kitchen staff at California Medical Facility are not providing them. (ECF No. 1.)
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Plaintiff contends that this violates his right to adequate medical treatment under the Eighth

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Amendment. (Id.) Plaintiff’s allegations concern events between July 5, 2014 and the

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constructive filing of the complaint on November 12, 2014. (Id.) From the complaint and

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attached records, it appears that, for most of this period, prison staff were unaware of any medical

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orders for plaintiff to receive diabetic snacks, as plaintiff did not have the “yellow card” required

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by prison policy for medical accommodations. On October 10, 2014, in response to his 602

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appeal, plaintiff was issued a new medical chrono for diabetic snacks. (Id. at 7, 10.) However,

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plaintiff still was not provided diabetic snacks, as he did not have the required yellow card. (Id. at

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2.)

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III. Medical Indifference
Denial or delay of medical care for a prisoner’s serious medical needs may constitute a

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violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

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97, 104-05 (1976). An individual is liable for such a violation only when the individual is

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deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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

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In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439

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F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the

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plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton infliction of

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pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d

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at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.

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Second, the plaintiff must show the defendant’s response to the need was deliberately
indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act
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or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

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indifference. Id. Under this standard, the prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but that person

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“must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

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approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A

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showing of merely negligent medical care is not enough to establish a constitutional violation.

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Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106.

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Under this standard, plaintiff has failed to state a medical indifference claim against any

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defendant. Prior to October 2014, defendants were unaware that plaintiff had medical orders for a

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diabetic snack; therefore, they were not deliberately indifferent. On October 30, 2014, defendant

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Sams allegedly denied plaintiff access to “the only chowhall that has the diabetic [treatments],”

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citing plaintiff’s lack of a yellow card and prison policy. (ECF No. 1 at 2.) This does not rise to

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the level of a “deliberately indifferent” mindset. Moreover, plaintiff has not alleged, in any

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specific terms, that he suffered harm as a result of being denied evening snacks.

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IV. Retaliation

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An inmate may state a cognizable First Amendment claim based on retaliation for

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protected conduct, such as filing administrative grievances. To prevail on a First Amendment

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retaliation claim, plaintiff must show: (1) an adverse action against him; (2) because of; (3) his

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protected conduct, and that such action; (4) chilled his exercise of his First Amendment rights;

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and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson,

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408 F.3d 559, 567–68 (9th Cir. 2005).

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Plaintiff alleges that defendant Ferreira retaliated against him by “ripping open [his] bag.”

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Plaintiff asserts that this was due to plaintiff’s refusal to withdraw a 602 appeal against him, but

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does not explain further or specify the basis for this belief. (ECF No. 1 at 2.) Plaintiff’s

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allegations are too vague and conclusory to state a First Amendment claim.

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Plaintiff also alleges that defendant Stankiewicz, on the prison’s kitchen staff, threatened

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to file false disciplinary charges against plaintiff if he continued to ask for diabetic snacks. These

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brief and conclusory allegations also fail to state a First Amendment claim.
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V. Leave To Amend
The complaint will be dismissed for failure to state a claim. However, plaintiff will be
granted one opportunity to file an amended complaint.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

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is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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VI. Injunctive Relief

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In his complaint, plaintiff seeks preliminary injunctive relief. As the complaint is being
dismissed for failure to state a claim, the court will deny this request without prejudice.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 6) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation, filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed for failure to state a claim.
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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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5. Plaintiff’s motion for temporary restraining order (ECF No. 1) is denied without

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prejudice.

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Dated: January 20, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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