Grissom v. Johnson & Johnson
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/8/2015 DENYING plaintiff's 6 motion for appointment of counsel. IT IS RECOMMENDED that plaintiff's 2 motion to proceed ifp be denied; and this action be dismissed for failure to state a cognizable claim for relief. Referred to Judge Troy L. Nunley; Objections due within 14 days.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY GRISSOM,
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No. 2:15-cv-1334 TLN DAD P
Plaintiff,
v.
ORDER AND
JOHNSON & JOHNSON,
FINDINGS AND RECOMMENDATIONS
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).
SCREENING REQUIREMENT
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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 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 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.
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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However, in order to survive dismissal for failure to state a claim a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550
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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all
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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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The Civil Rights Act under which this action was filed provides as follows:
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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); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
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omits to perform an act which he is legally required to do that causes the deprivation of which
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complaint is made.” Johnson v. Duffy, 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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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
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concerning the involvement of official personnel in civil rights violations are not sufficient. See
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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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DISCUSSION
In his complaint pending before the court, plaintiff has identified Johnson & Johnson as
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the sole defendant. Plaintiff alleges that Johnson & Johnson distributed the psychotropic
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medication Risperdal to state prisons. According to plaintiff, he now suffers from gynecomastia
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because of his ingestion of that medication. Plaintiff claims that Johnson & Johnson has violated
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his rights under the Eighth Amendment, Fifth Amendment, and Fourteenth Amendment and
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requests damages. (Compl. at 3 & 5-6.)
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Plaintiff’s complaint fails to state a cognizable claim for relief. As an initial matter, under
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42 U.S.C. § 1983, plaintiff has a right to be free from violations of constitutional guarantees by
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those acting under color of state law, but plaintiff has no right to be free from infliction of such
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harm by private actors. See Van Ort v. Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). In this case,
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plaintiff has not alleged any facts to indicate that Johnson & Johnson was acting under color of
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state law. Moreover, even if plaintiff could somehow establish that Johnson & Johnson is a state
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actor, plaintiff has not alleged any violation of his federal constitutional rights. Specifically,
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plaintiff has not alleged any facts to indicate that Johnson & Johnson was deliberately indifferent
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to plaintiff’s serious medical needs or that Johnson & Johnson was even aware of plaintiff or his
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medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976). At most, plaintiff has alleged that
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Johnson & Johnson may have been negligent in distributing Risperdal to state prisons. It is well
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established, however, that “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
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support [a] cause of action” under the Eighth Amendment. Broughton v. Cutter Laboratories, 622
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F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06).
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Where, as here, it is clear that granting plaintiff leave to amend his complaint would be
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futile, the court will recommend that this action be dismissed. See Chaset v. Fleer/Skybox Int’l,
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300 F.3d 1083, 1088 (9th Cir. 2002) (there is no need to prolong the litigation by permitting
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further amendment where the “basic flaw” in the underlying facts as alleged cannot be cured by
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amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (“Because any
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amendment would be futile, there was no need to prolong the litigation by permitting further
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amendment.”).
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OTHER MATTERS
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Also pending before the court is plaintiff’s motion for appointment of counsel. The
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United States Supreme Court has ruled that district courts lack authority to require counsel to
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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,
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298 (1989). In certain exceptional circumstances, the district court may request the voluntary
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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
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The test for exceptional circumstances requires the court to evaluate the plaintiff’s
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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not
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establish exceptional circumstances that would warrant a request for voluntary assistance of
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counsel. In light of the findings and recommendations herein, the court does not find the required
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exceptional circumstances.
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CONCLUSION
IT IS HEREBY ORDERED that plaintiff’s motion for appointment of counsel (Doc. No.
6) is denied.
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be denied; and
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2. This action be dismissed for failure to state a cognizable claim for relief.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: October 8, 2015
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DAD:9
gris1334.56
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