Reyes v. California Department of Corrections et al

Filing 17

ORDER signed by Magistrate Judge Kendall J. Newman on 3/12/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff& #039;s complaint is DISMISSED with 30 days to file an amended complaint. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by a prisoner. Plaintiffs February 24, 2015 request 13 is denied as moot.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANE MYRON REYES,

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Plaintiff,

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v.

No. 2:15-cv-0140 KJN P

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28

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U.S.C. § 636(c).

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By order filed February 23, 2015, plaintiff was directed to submit a certified copy of his
trust account statement. On March 4, 2015, plaintiff filed his trust account statement.
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations
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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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In his first claim, plaintiff alleges medical malpractice based on defendant LVN Bello’s

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alleged wrongful action in cleaning wax from plaintiff’s ear, allegedly resulting in plaintiff

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suffering bleeding from his ear for seven days, pain, and lost hearing. (ECF No. 1 at 4-5.)

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Plaintiff contends that an unidentified custody officer ordered plaintiff to sit through the painful

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procedure despite plaintiff’s cries of pain and request to terminate the procedure. Plaintiff alleges

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that “all the doctors at Susanville failed to provide adequate health care services,” refused to

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timely schedule an ENT referral or to prescribe medication for plaintiff’s pain, hearing loss,

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vertigo and equilibrium dysfunction. On June 23, 2014, plaintiff alleges that defendant Officer

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Barnes denied plaintiff access to medical care when plaintiff became disoriented. Plaintiff alleges

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that defendant Daily forced plaintiff to return to work despite plaintiff’s persistent ear infections,

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hearing loss, pain, and equilibrium problem. Plaintiff contends that defendant Daily and

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defendant Officer Johnson refused to call an ambulance for plaintiff when he complained he was

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very dizzy and in pain.

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Plaintiff states he has spoken with defendants Dr. Reed, Dr. Pomazal and Chief Medical

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Executive Dr. Swingle regarding a referral to an ENT, and they all stated plaintiff was scheduled,

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but later admitted that there was no contracted ENT. Upon his transfer to the California City

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Institution, plaintiff states he requested a follow-up appointment for his persistent ear infections,

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medications for pain, hearing loss, and equilibrium dysfunction. Plaintiff alleges that Dr. Ho

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submitted a request for an ENT referral, which was denied, but Dr. Ho re-submitted the request.

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On December 11, 2014, plaintiff was interviewed by Dr. Kitt via telemedicine and diagnosed with
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chronic otitis externa and temporomandibular joint syndrome of the jaw, and recommended an

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site office visit to evaluate plaintiff’s illness. Plaintiff claims the infection has now spread to his

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jaw. Plaintiff alleges that Chief Medical Executive Ross “continue[s] to inflict unnecessary

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wanton of injuries, that shock normal conscience [and impose] cruel and unusual punishment,”

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(ECF No. 1 at 7), but plaintiff includes no specific factual allegations as to Dr. Ross.

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In his second claim, plaintiff appears to claim that he was wrongfully assigned a P-Code

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classification which allegedly increases his risk assessment, apparently depriving him of access to

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the early release program designed to reduce the prison population or increasing the duration of

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his incarceration. Plaintiff seeks monetary damages, as well as injunctive relief requiring

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Governor Brown to improve medical care and “not inflict injury, cruel and unusual punishment.”

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(ECF No. 1 at 9.)

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To the extent plaintiff seeks prospective injunctive relief to improve medical care for all

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inmates, such claim is barred by Plata v. Schwarzenegger, No. C 01-1351 THE (N.D. Cal.), a

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class action suit concerning the adequacy of medical care provided throughout the California state

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prison system.

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Plaintiff’s allegations in his first claim, based on medical malpractice, are insufficient to

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state a civil rights claim. While the Eighth Amendment of the United States Constitution entitles

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plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with

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deliberate indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978,

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985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-

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83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by

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demonstrating that failure to treat [his] condition could result in further significant injury or the

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unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the need

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was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096).

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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain

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or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122

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(citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness,
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which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation

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marks omitted); Wilhelm, 680 F.3d at 1122. Mere ‘indifference,’ ‘negligence,’ or ‘medical

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malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d

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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06.)

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Because plaintiff’s allegations are based on negligence, such allegations fail to rise to the

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level of deliberate indifference. However, it may be that plaintiff can amend his complaint to

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allege facts demonstrating a particular defendant acted with the culpable state of mind. Thus,

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plaintiff is granted leave to amend. But plaintiff must specifically allege facts demonstrating that

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each named defendant acted, or failed to act, with the requisite state of mind.

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In addition, plaintiff named the California Department of Corrections and Rehabilitation

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(“CDCR”), Custody and Medical Services Departments as defendants. The Eleventh Amendment

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serves as a jurisdictional bar to suits brought by private parties against a state or state agency

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unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979);

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Alabama v. Pugh, 438 U.S. 781 (1978)(per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-

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50 (9th Cir. 1982). In the instant case, the State of California has not consented to suit.

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Accordingly, plaintiff’s claims against the CDCR and its Custody and Medical Services

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Departments are frivolous and must be dismissed. Plaintiff should not include these defendants in

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any amended complaint.

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Plaintiff’s second claim is unavailing. A prisoner does not have a constitutional right to a

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particular classification. See Moodv v. Daggett, 429 U.S. 78, 88 n.9 (1976) (rejecting claim that a

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parole violator warrant and detainer adversely affected his prison classification and qualification

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for institutional programs). The Supreme Court expressly rejected a claim that “prisoner

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classification and eligibility for rehabilitative programs in the federal system” invoked due

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process protections. Id.; Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“a prisoner

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has no constitutional right to a particular classification status”). Thus, in general, prison officials’

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housing and classification decisions do not give rise to federal constitutional claims encompassed

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by the protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments.

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See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). In addition, the Constitution does not
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guarantee a prisoner placement in a particular prison or protect an inmate against being

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transferred from one institution to another. Meachum v. Fano, 427 U.S. 215, 223-225 (1976).

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See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (prison authorities may change a

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prisoner’s “place of confinement even though the degree of confinement may be different and

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prison life may be more disagreeable in one institution than in another” without violating the

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prisoner’s due process rights). Thus, plaintiff’s second claim is dismissed without prejudice, and

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should not be included in any amended complaint.
The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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

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

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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

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Plaintiff must file his amended complaint on the form provided by the court, ensuring that

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each named defendant is identified in the defendants’ section on page two. Unrelated claims

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against different defendants must be pursued in multiple lawsuits.

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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).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).
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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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

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alleged.
However, plaintiff need not re-submit his exhibits. The exhibits appended to the original

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complaint are a part of the court record and may be referred to by any party. (ECF No. 1 at 10-

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190.)

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Finally, on February 24, 2015, plaintiff filed a document entitled “request to amend or
consolidate.” (ECF No. 13.) In light of the above, plaintiff’s request is denied as moot.

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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 is granted.

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

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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5. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by
a prisoner.
6. Plaintiff’s February 24, 2015 request (ECF No. 13) is denied as moot.
Dated: March 12, 2015

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANE MYRON REYES,

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Plaintiff,

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v.

No. 2:15-cv-0140 KJN P

NOTICE OF AMENDMENT

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
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filed______________.
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Amended Complaint

DATED:

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________________________________
Plaintiff