Garland v. Puig et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 6/18/15 ORDERING that plaintiffs 2 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's complaint is DISMISSED with 30 days to amend. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER C. GARLAND,

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No. 2:15-cv-1165 KJN P

Plaintiff,
v.

ORDER

JOHN PUIG, et al.,

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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).

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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.

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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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Named as defendants are Dr. John Puig, Dr. R. Starr, Dr. S. Golubyanikov and Dr. O.

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Kalincsak. Plaintiff alleges that he received inadequate dental care. In particular, plaintiff alleges

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that he has been complaining of dental pain since October 2014. Plaintiff alleges that on

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December 1, 2014, he received a partial cleaning but was still in pain with bleeding and swollen

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gums. On December 29, 2014, defendant Starr saw plaintiff. After seeing defendant Starr,

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plaintiff’s symptoms persisted. On January 7, 2015, defendant Kalincsak saw plaintiff. At that

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time, defendant Kalincsak gave plaintiff a filling. Plaintiff was not given any pain medication

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“right away” and his pain persisted.

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Plaintiff alleges that on February 13, 2015, he was seen, although he does not identify by

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whom, and had two fillings filled. Following that appointment, plaintiff’s pain increased. After

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further complaints, plaintiff was seen by defendant Starr on February 25, 2015, and by defendant

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Kalincsak on March 11, 2015, for a cleaning. As relief, plaintiff seeks money damages.

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Plaintiff’s complaint contains no allegations against defendants Puig and Golubyanokav.
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an
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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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Defendants Puig and Golubyanikov are dismissed because plaintiff has not linked them to

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the alleged deprivations. If plaintiff files an amended complaint, he must specifically allege how

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these defendants violated his constitutional rights. Plaintiff may not rely on exhibits to state his

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claims for him.

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To succeed on an Eighth Amendment claim predicated on the denial of medical (or

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dental) care, a plaintiff must establish that he had a serious medical need and that the defendant’s

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response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the

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failure to treat the condition could result in further significant injury or the unnecessary and

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wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the

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denial, delay or intentional interference with medical treatment or by the way in which medical

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care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with

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deliberate indifference, a prison official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows that
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plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take

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reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed to act

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despite his knowledge of a substantial risk of serious harm.” Id. at 842.

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A physician need not fail to treat an inmate altogether in order to violate that inmate’s

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Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A

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failure to competently treat a serious medical condition, even if some treatment is prescribed, may

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constitute deliberate indifference in a particular case. Id.

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It is well established that mere differences of opinion concerning the appropriate treatment
cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
For the following reasons, the undersigned finds that plaintiff has not pled potentially

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colorable claims against defendants Kalincsak and Starr. Plaintiff alleges that he first saw

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defendant Starr on December 29, 2015, but his symptoms persisted after this exam. Plaintiff does

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not allege what occurred during this exam. Without knowing how defendant Starr treated

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plaintiff on this date, or failed to treat plaintiff, the undersigned cannot determine whether

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plaintiff has stated a potentially colorable claim against defendant Starr.

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Plaintiff alleges that defendant Kalinscak gave plaintiff a filling on January 7, 2015, but

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that plaintiff’s pain persisted because he was not given pain medication “right away.” It is

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unclear if plaintiff is claiming that the filling caused him to suffer pain or if plaintiff is alleging

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that defendant Kalinscak failed to treat the pain he had been suffering from since October 2014.

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Plaintiff’s claim that he was not given pain medication “right away” also suggests that plaintiff

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later received pain medication. Without knowing more about the pain defendant Kalinscak

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allegedly failed to treat and whether plaintiff later received pain medication, the undersigned

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cannot determine whether plaintiff has stated a potentially colorable claim against defendant

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Kalinscak.

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Plaintiff next alleges that he was seen by defendant Starr on February 25, 2015, after

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plaintiff complained about pain. Plaintiff does not describe what defendant Starr did, or failed to

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do, on February 25, 2015, which allegedly violated his constitutional rights. Because plaintiff
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does not describe defendant Starr’s conduct on February 25, 2015, the undersigned cannot

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determine whether plaintiff has stated a potentially colorable claim for relief against defendant

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Starr.

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Plaintiff alleges that defendant Kalinscak cleaned his teeth on March 11, 2015. It is

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unclear how plaintiff is alleging that defendant Kalinscak violated his constitutional rights on

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March 11, 2015. Because plaintiff’s claim against defendant Kalinscak regarding the March 11,

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2015 cleaning is vague and conclusory, the undersigned cannot determine whether plaintiff has

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stated a potentially colorable claim for relief against defendant Kalinscak.

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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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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.

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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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Dated: June 18, 2015

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER C. GARLAND,

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No. 2: 15-cv-1165 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

JOHN PUIG, et al.,

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Defendants.

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

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Amended Complaint

DATED:
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Plaintiff