Hicks v. State Medical et al

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 9/21/2017 GRANTING plaintiff's 2 , 5 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED. Within 30 days, plaintiff shall complete the attached Notice of Amendment with the required documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN HICKS,

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Plaintiff,

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No. 2:15-cv-0747 DB P

v.

ORDER

STATE MEDICAL, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges that the water at “Tracy Medical” was

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contaminated, which posed a dangerous risk to his immune system as an AIDS patient. (ECF No.

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1 at 3.) Furthermore, plaintiff alleges that defendant Lopez, a correctional officer on the third

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watch, was responsible for plaintiff being assigned to the third tier of the prison, which posed a

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dangerous risk to him because he had pins and screws in his left knee and took psychiatric

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medication. (Id. at 2) Before the court are plaintiff’s application to proceed in forma pauperis

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(ECF Nos. 2; 5) and the screening of plaintiff’s complaint. Plaintiff has consented to the

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jurisdiction of a magistrate judge. (ECF No. 4.) For the reasons set forth below, the court grants

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plaintiff’s motion to proceed in forma pauperis and dismisses plaintiff’s complaint with leave to

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amend.

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I.

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Motion to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). (ECF Nos. 2; 5.) 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). Plaintiff is currently without funds. Accordingly, the court will not assess

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an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated for monthly payments

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

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These payments shall be collected and forwarded by the appropriate agency to the Clerk of the

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Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in

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full. 28 U.S.C. § 1915(b)(2).

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II.

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Screening
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A.

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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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Legal Standard

In considering whether a complaint states a claim upon which relief can be granted, the

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court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe

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the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232,
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236 (1974).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim,

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a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or “a

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formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009).

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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. Attachments to a complaint are considered to be

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part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach

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Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

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B.

Discussion

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Plaintiff’s complaint appears to make two claims against two defendants. A claim for

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inadequate medical care by the “doctor” at DVI, as well as a deliberate indifference claims

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against correctional officer Lopez at DVI. (ECF No. 1 at 2-3.) For the reasons outlined below,

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the court dismisses the complaint for failure to state a cognizable claim.

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1.

Improper Defendant

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The first named defendant in this action appears to be the prison institution itself, which

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plaintiff identifies as merely “Tracy Medical.” Plaintiff’s complaint is deficient, first, in that it

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fails to identify a proper party for relief. The Eleventh Amendment prohibits federal courts from

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hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against state

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agencies (such as the California Department of Corrections and Rehabilitation) and individual

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prisons (such as “Tracy Medical”), absent “a waiver by the state or a valid congressional override

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. . . .” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment

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bars suits which seek either damages or injunctive relief against a state, ‘an arm of the state,’ its
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instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d

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928, 957 n. 28 (9th Cir. 2002) (internal quotation and citations omitted), cert. denied, 538 U.S.

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961 (2003). “The State of California has not waived its Eleventh Amendment immunity with

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respect to claims brought under § 1983 in federal court . . . .” Dittman, 191 F.3d at 1025–26

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(citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal.

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Dep’t. of Corr., 554 F.3d 747, 752 (9th Cir. 2009). “However, under Ex Parte Young, 209 U.S.

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123 (1908), the Eleventh Amendment does not bar actions seeking only prospective declaratory

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or injunctive relief against state officers in their official capacities[,]” Fireman’s Fund, 302 F.3d

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at 957 n. 28 (internal quotation and citation omitted), or, in appropriate instances, in their

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individual capacities, Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, (1997) (citing Ex

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Parte Young, 209 U.S. at 123). In any amended complaint that he may file, plaintiff should

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carefully consider whom he may properly name as a defendant in this action.

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2.

Failure to State a Claim for Inadequate Medical Care

Plaintiff’s claim against “Tracy Medical” is also deficient in that it fails to adequately

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state a claim under Section 1983. The court will briefly set forth the standards that govern a

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claim under the Eighth Amendment based on inadequate medical care.

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To state such a claim, plaintiff must allege “acts or omissions sufficiently harmful to

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evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106

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(1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and

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that defendant possessed a sufficiently culpable state of mind. Snow v. McDaniel, 681 F.3d 978,

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982 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th

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Cir. 2014) (en banc); Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). To meet the objective

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element, plaintiff must demonstrate the existence of a serious medical need. Estelle, 429 U.S. at

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104. Such a need exists if the failure to treat the injury or condition “could result in further

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significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006) (internal quotes and citations omitted). Serious medical needs

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include “[t]he existence of an injury that a reasonable doctor or patient would find important and

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worthy of comment or treatment; the presence of a medical condition that significantly affects an
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individual’s daily activities; [and] the existence of chronic and substantial pain.” McGuckin v.

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Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled in part on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

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Under the subjective element, a prison official is deliberately indifferent only if the

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official “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v.

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Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal quotes and citation omitted). To prevail on

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a claim for deliberate indifference, a prisoner must demonstrate that the prison official “kn[ew] of

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and disregard[ed] an excessive risk to inmate health or safety; the official must both be aware of

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

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and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate

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indifference “may appear when prison officials deny, delay or intentionally interfere with medical

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treatment, or it may be shown by the way in which prison physicians provide medical care.”

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Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). The court “need not defer to the

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judgment of prison doctors or administrators” when deciding the deliberate indifference element.

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Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989) (where prison officials were aware loss

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of his dentures was causing him severe pain and permanent physical damage, three month delay

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in providing pain relief and soft food diet constituted Eighth Amendment violation).

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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 delay in providing care, a

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plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

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Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059.

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

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

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his needs.” Jett, 439 F.3d at 1096; see also McGuckin, 974 F.2d at 1060.

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In applying the deliberate indifference standard, the Ninth Circuit has held that before it

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can be said that a prisoner’s civil rights have been abridged, “the indifference to his medical

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needs must be substantial. Mere ‘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, 429 U.S. at 105-06). A complaint that a physician has been negligent in

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diagnosing or treating a medical condition does not state a valid claim of medical mistreatment

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under the Eighth Amendment. Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

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1990).

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A difference of opinion between medical professionals concerning the appropriate course

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of treatment generally does not amount to deliberate indifference to serious medical needs.

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Toguchi, 391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Also, “a

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difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a [§]1983 claim.” Franklin, 662 F.2d at 1344. To establish that

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such a difference of opinion amounted to deliberate indifference, the prisoner “must show that the

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course of treatment the doctors chose was medically unacceptable under the circumstances” and

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“that they chose this course in conscious disregard of an excessive risk to [the prisoner’s] health.”

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See Jackson, 90 F.3d at 332; see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012)

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(awareness of need for treatment followed by unnecessary delay in implementing the prescribed

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treatment sufficient to plead deliberate indifference); see also Snow, 681 F.3d at 988 (decision of

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non-treating, non-specialist physicians to repeatedly deny recommended surgical treatment may

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be medically unacceptable under all the circumstances).

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The statement of claim in plaintiff’s complaint provides as follows:
I am being a gennie pig. I have full blown AIDS. The water in
Tracy CA reception center is contaminated. Its dangerous to my
immune system. And I’m being given dirty unclean water. There’s
a sign for the visitors that says do not drink water.

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(sic) (ECF No. 1 at 3.) Plaintiff’s prayer for relief merely states “to be compensated for the stress

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and malpractice.” (Id.)

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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.

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3.

Failure to State a Claim Against Defendant Lopez

As to defendant Lopez, plaintiff’s full claim states that:
I’ve got pins and screws in my left knee and there making me cell
on the third tier. I also take psychiatric medication. I should not be
on the third tier.
(ECF No. 1 at 2.)
As with the claim against “Tracy Medical,” it appears that plaintiff is trying to make a

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claim for deliberate indifference to a medical need. However, also like the claim against “Tracy

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Medical,” the court finds the allegations in the complaint so vague and conclusory that it is unable

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

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has provided plaintiff with the elements for pursuing a deliberate indifference claim above.

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Plaintiff must allege with at least some degree of particularity overt acts which this defendant

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engaged in that support the claim for deliberate indifference. As currently stated plaintiff merely

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names Lopez as a defendant and then alleges generally that plaintiff should not be placed on the

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third tier of the prison. In order to make a claim on this basis, it is necessary to identify a specific

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defendant who took a specific action that harmed plaintiff. The complaint, as currently drafted,

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does not do this.

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4.

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Leave to File an Amended Complaint

As stated above, the court ultimately finds the allegations in plaintiff’s complaint so vague

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and conclusory that it is unable to determine whether the current action is frivolous or fails to

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state a claim for relief. The court has determined that the complaint does not contain a short and

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plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a

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flexible pleading policy, a complaint must give fair notice and state the elements of the claim

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plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiff’s claim. Id. Because plaintiff has failed to comply with the

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requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will,

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

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Finally, 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.

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III.

Conclusion

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

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1.

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Plaintiff’s request for leave to proceed in forma pauperis (ECF Nos. 2; 5) is

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

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Plaintiff 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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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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Dated: September 21, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / hick.0747.scrn

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