Juarez v. Butts et al

Filing 23

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/16/2017 DISMISSING plaintiff's first amended complaint; and plaintiff has 30 days to file an amended complaint. IT IS RECOMMENDED that plaintiff's 17 motion for an injunction be denied. Motion referred to Judge John A. Mendez; Objections to F&R 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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JOSE JUAREZ,

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No. 2:15-cv-1996 JAM DB P
Plaintiff,

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CARMEN BUTTS, et al.,
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 contends defendants failed to provide him adequate pain

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medication, as a result of which he suffered a stroke. On December 18, 2015, plaintiff’s original

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complaint was dismissed with leave to amend. (ECF No. 8.) Plaintiff was advised of the

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requirements for stating an Eighth Amendment claim against each defendant.

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Pending before the court is the mandatory screening of plaintiff’s first amended complaint

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and plaintiff’s motion for an injunction seeking adequate pain medication. For the reasons set out

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below, the court orders plaintiff’s complaint dismissed without prejudice and recommends denial

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of plaintiff’s motion for an injunction.

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BACKGROUND
On September 21, 2015, plaintiff filed his original complaint. (ECF No. 1.) Therein,
plaintiff alleged that defendant Dr. Butts discontinued plaintiff’s prescription for morphine
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without “due process;” that defendant Warden Rackley violated plaintiff’s due process rights by

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failing to correct this problem on administrative appeal; and that defendant Dr. Hlaing violated

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plaintiff’s Eighth Amendment rights by failing to prescribe appropriate medication for plaintiff’s

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pain. Upon screening, the court found plaintiff failed to allege a constitutional violation by any

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defendant. (Dec. 18, 2015 Order (ECF No. 8).) Construing plaintiff’s claims as being brought

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under the Eighth Amendment, the court found plaintiff failed to allege defendant Butts was

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deliberately indifferent, failed to make a connection between the conduct of defendant Rackley

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and plaintiff’s medical care, and failed to allege that defendant Hlaing was deliberately indifferent

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to a serious medical need. (Id. at 3, 5-6.)
On February 19, 2016, plaintiff filed his first amended complaint (“FAC”). (ECF No. 14.)

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On June 24, 2016, plaintiff filed a motion for injunctive relief in which he seeks adequate pain

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medication. (ECF No. 17.)

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SCREENING FIRST AMENDED COMPLAINT
I.

Legal Standards
A. Screening Requirement

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

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claims 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. Neitzke v.

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

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

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an

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arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989);

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Franklin, 745 F.2d at 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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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. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

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resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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B. Civil Rights Act Pursuant to 42 U.S.C. § 1983
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. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976).

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“A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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

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Supervisory personnel are generally not liable under § 1983 for the actions of their

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

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supervisorial position, the causal link between him and the claimed constitutional violation must

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

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Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the
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involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of

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

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C. Eighth Amendment Standards

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As a general matter, a prisoner who claims a violation of the Eighth Amendment must

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allege and prove that he suffered a sufficiently serious deprivation (the objective prong of the

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claim) and that officials acted with deliberate indifference in allowing or causing the deprivation

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to occur (the subjective prong of the claim). Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Thus

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when a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner

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must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference

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to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A viable Eighth

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Amendment medical claim, then, states two elements: “the seriousness of the prisoner’s medical

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need and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d

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1133 (9th Cir. 1997) (en banc).

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A medical need is serious “if the failure to treat the prisoner’s condition could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

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F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

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“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

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at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

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objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

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825, 834 (1994).

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If a prisoner establishes the existence of a serious medical need, he must then show that

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prison officials responded to it with deliberate indifference. Farmer, 511 U.S. at 834. In general,

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a prisoner may show deliberate indifference with evidence that officials denied, delayed, or

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intentionally interfered with medical treatment, or he may show it by the way in which prison

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officials actively provided medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th

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Cir. 1988). Before it can be said that a prisoner’s civil rights were violated by inadequate medical

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care, however, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also

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Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

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mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

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the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S.

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312, 319 (1986)).

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Mere differences of opinion between a prisoner and prison medical staff or between

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medical professionals as to the proper course of treatment for a medical condition do not give rise

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to a civil rights claim. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d

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1337, 1344 (9th Cir. 1981).

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II.

Discussion

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A. Allegations in the First Amended Complaint

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Plaintiff makes the following allegations. On January 28, 2014, while plaintiff was

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incarcerated at the California Substance Abuse Treatment Facility at Corcoran (“CSATF”), Dr.

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Shoewalter prescribed plaintiff 30 mg. of morphine twice a day for pain. At some point

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thereafter, plaintiff was transferred to the California Health Care Facility (“CHCF”) in Stockton.

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On May 3, 2014, defendant Dr. Butts cancelled the morphine prescription. As a result of the

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pain, high blood pressure, and withdrawal that plaintiff suffered from the lack of morphine, on

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May 12, 2014, he had a stroke and must use a wheelchair. (FAC (ECF No. 14) at 2, 7-8.)

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Plaintiff alleges defendants failed to provide him adequate pain medication. (Id. at 7.) He

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also alleges that there has been a “failure to treat” his “serious medical need,” which has caused

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further injury, including “extreme chronic lower back, right ankle problem, and left []arm

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condition, and very pain severe.” (Id. at 8.) He states defendants have acted “intentionally” and

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“with knowle[d]ge of plaintiff’s suffering.” (Id. at 9.)

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Plaintiff alleges defendant Rackley was the director of the California Department of

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Corrections and Rehabilitation at this time and therefore was responsible for all inmates’ medical

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care. (Id. at 2-3.) He further alleges Does 1 through 5, who are any successors of Rackley, are

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similarly liable. (Id. at 5-6.) He alleges defendants Butts, Hlaing,1 and Does 6 through 20 were

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responsible for assuring that medical staff provided inmates with proper medical care and that

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defendant Butts, Hlaing, and Does 6 through 20 had authority to order and approve medical tests

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and treatments. (Id. at 3-4, 6.)

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B. Does Plaintiff Allege Cognizable Claims?

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Plaintiff’s FAC suffers many of the same problems as his original complaint. Plaintiff

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makes only vague allegations regarding defendants Rackley and Hlaing. As plaintiff was

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informed previously, supervisors are not liable under section 1983 for the conduct of their

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employees. General allegations that those supervisors had authority over medical personnel or

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had the ultimate authority for medical care at the prison do not state a claim. Plaintiff must

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explain specifically what each of these defendants did, or did not do, that caused him harm. Each

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defendant’s conduct must show that he was deliberately indifferent to plaintiff’s medical needs.

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Then, plaintiff must explain just what sort of harm he suffered as a result of each defendant’s

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conduct.

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It is not clear from plaintiff’s complaint whether he is asserting any other claims against

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defendant Hlaing. Plaintiff’s general allegations that “defendants” failed to prescribe adequate

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pain medication is insufficient to state a claim against defendant Hlaing. As he did with his

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original complaint, plaintiff attaches a copy of a health care appeal for which defendant Hlaing

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interviewed him and partly granted his requests for medical appliances. (See ECF No. 14 at 18-

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19.) Because that appeal does not address the question of plaintiff’s pain medication, and because

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it appears plaintiff received most of the appliances that he was seeking in that appeal, it does not

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appear to be a subject of his FAC.

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Plaintiff makes references to “Defendant Min. MD,” “Laing Min M.D.,” and “Defendant
Hlaing.” (FAC at 2-4.) It appears that all of these references are to one person, Dr. Hlaing, who
denied one of plaintiff’s medical appeals. (See ECF No. 14 at 18-19.)
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With respect to defendant Butts, plaintiff again states only that her conduct resulted in

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harm to him. Plaintiff does not, however, show what defendant Butts did that would provide a

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basis for finding Butts was deliberately indifferent to plaintiff’s medical needs. The fact that

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plaintiff suffered a stroke does not, in and of itself, mean that defendant Butts was deliberately

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indifferent to his serious medical needs when she discontinued his morphine. Plaintiff must be

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more specific about what occurred with Dr. Butts and why he feels it shows she knew of, and

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failed to address, his serious medical needs.

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The court thus finds that plaintiff has failed to state cognizable claims against any of the

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defendants. Plaintiff will be given one more opportunity to amend his complaint. As plaintiff has

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been informed previously, if he chooses to amend the complaint, plaintiff must demonstrate how

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the conditions or conduct of which he complains have resulted in a deprivation of his

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constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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That is, the amended complaint must provide the court with factual allegations that meet

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each and every element of the claim(s) he means to allege. Also, the amended complaint must

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allege in specific terms how each named defendant is involved. There can be no liability under

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42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s

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actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and

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

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

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Furthermore, plaintiff is reminded that the court cannot refer to a prior pleading in order to

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

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

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

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

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

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

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Finally, plaintiff is informed that if he does not file an amended complaint or otherwise

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respond to this order, the court will recommend that this case be dismissed for failure to

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prosecute, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 110.

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MOTION FOR INJUNCTION

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Plaintiff seeks an injunction to force defendants Butts and Hlaing to provide him adequate

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pain medication. (ECF No. 17 at 2.) He states that defendant Hlaing stopped his pain medication

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in May 2016. (Id. at 5.)

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A party requesting preliminary injunctive relief must show that “he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

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Plaintiff may not seek preliminary injunctive relief until the court finds that his complaint

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presents cognizable claims. See Zepeda v. United States Immigration Serv., 753 F.2d 719, 727

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(9th Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the

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parties and subject matter jurisdiction over the claim; [however] it may not attempt to determine

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the rights of persons not before the court.”). As explained above, plaintiff's complaint will be

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dismissed with leave granted to file an amended complaint. Thus, plaintiff has not demonstrated

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that he is likely to prevail on the merits of his claims. Moreover, the court has not authorized

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service of the complaint upon any of the named defendants. Accordingly, plaintiff's motion for a

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preliminary injunction should be denied as premature.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s first amended complaint (ECF No. 14) is dismissed;

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2. Plaintiff is granted thirty days from the date of service of this order to file an amended

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

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

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must bear the docket number assigned this case and must be labeled “Second
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Amended Complaint.” Plaintiff must file an original and two copies of the amended

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complaint. Failure to file an amended complaint or otherwise respond to this order

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will result in a recommendation that this action be dismissed for failure to prosecute.

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Further, IT IS HEREBY RECOMMENDED that plaintiff’s motion for an injunction (ECF
No. 17) be denied.
These findings and recommendations will be 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, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 16, 2017

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DLB1/prisoner-civil rights/juar1996.scrn

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