Womack v. Mahoney et al.

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 10/17/2016 ORDERING, within 30 days, plaintiff shall file a second amended complaint containing all of his allegations in one complete document. If plaintiff chooses not to file a second amended co mplaint, the court will proceed to screen the first amended complaint. The Clerk shall send plaintiff copies of both the 1 original complaint and the 7 first amended complaint, and a complaint form. Plaintiff's 6 request for a court order is DENIED as moot. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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Plaintiff,

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No. 2:15-cv-2517 TLN AC P

v.

ORDER

T. MAHONEY, et. Al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s motion to proceed in forma pauperis and

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his request for a court order directing High Desert State Prison (HDSP) property officers to send

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his property to his new facility at California State Prison, Sacramento (CSP-SAC) so that he can

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amend his complaint to name defendants employed at CSP-SAC. ECF Nos. 2 and 6. Plaintiff

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states that he needs his property in order to file an amended complaint in this action because he

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does not know the case number associated with this action or the names of the defendants he

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wants to add. Id. Plaintiff subsequently filed an amended complaint. ECF No. 7.

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I.

Motion to Proceed In Forma Pauperis
Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No.

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2. The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to

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authorize the commencement and prosecution of any suit without prepayment of fees by a person
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who submits an affidavit indicating that the person is unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious
physical injury.

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28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded

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from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three

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frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v.

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Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). Section 1915(g) should be used to deny a prisoner’s

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in forma pauperis status only upon a determination that each action reviewed (as a potential

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strike) is carefully evaluated to determine that it was dismissed as frivolous, malicious, or for

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failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen a

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district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is

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frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint

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is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of

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the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v.

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Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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Court records reflect that this court, in Womack v. Sullivan, 2:14-cv-0085 WBS EFB P

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(E.D. Cal. Jan. 30, 2014), previously determined that on at least three prior occasions, plaintiff

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has brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure

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to state a claim upon which relief may be granted. In denying plaintiff in forma pauperis status

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pursuant to § 1915(g), the court relied on Womack v. Contra Costa County, No. C 04-3043

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MMC, 2004 U.S. Dist. LEXIS 21975 (N.D. Cal. Oct. 13, 2004), which declared plaintiff a three-

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strikes litigant and identified Womack v. Superior Court, 99-2470 MMC (N.D. Cal. July 6, 1999)

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(Order of Dismissal), and Womack v. Daley, 99-2469 MMC (N.D. Cal. July 6, 1999) (Order of

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Dismissal), as among the 42 U.S.C. § 1983 actions filed by plaintiff, which “were dismissed on

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the grounds that such actions were frivolous, malicious, or failed to state a claim upon which
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relief may be granted.” This court also relied on Womack v. Donahoo, No. 2:12-cv-3110 WBS

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EFB (E.D. Cal. Sept. 13, 2013), which was dismissed for failure to state a claim. On appeal, the

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Ninth Circuit held that “[t]he district court did not abuse its discretion by denying Womack leave

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to proceed in forma pauperis because it correctly determined that Womack had filed at least three

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actions that had been dismissed as frivolous or for failure to state a claim.” Womack v. Sullivan,

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594 Fed. App’x 402 (9th Cir. 2015).

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Based on the foregoing, this court finds that plaintiff is precluded from proceeding in

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forma pauperis unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C.

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§ 1915(b). To meet the exception, plaintiff must allege facts that demonstrate that he was “under

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imminent danger of serious physical injury” at the time of the filing of the complaint. Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“it is the circumstances at the time of the filing

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of the complaint that matters for the purposes of the ‘imminent danger’ exception under § 1915(g)

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”); see also, Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v.

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Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999) Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.

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1998); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).

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Plaintiff’s first amended complaint does not allege facts establishing imminent danger,

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because the facts alleged refer to events that have happened in the past. See Andrews, 493 F.3d at

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1053. While the original complaint alleged facts that could in theory establish imminent danger,

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the original complaint was superseded by the first amended complaint, as explained further

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below. Because plaintiff’s original complaint alleged facts that indicate he may be under

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imminent danger, he will be given the opportunity to amend his complaint. If plaintiff fails to

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amend, or amends but fails to allege facts showing he is in imminent danger, the court will

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recommend his in forma pauperis status be denied.

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II.

The First Amended Complaint Supersedes the Original Complaint
Plaintiff’s original complaint named five defendants, all employees at HDSP. ECF No. 1.

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Plaintiff’s first amended complaint names three defendants employed at CSP-SAC. ECF No. 7.

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The first amended complaint references claims made in the original complaint, but does not

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restate the claims made against HDSP defendants in the original complaint. Id.
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Plaintiff is informed that the court cannot refer to a prior pleading in order to make his

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first amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims

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dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent

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amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the

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

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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Plaintiff is being given the opportunity to amend his complaint. Should plaintiff choose to

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amend he must file a second amended complaint containing all of his claims and naming all the

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defendants wants to pursue in this action in one complete document. He is also reminded that he

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will not be granted in forma pauperis status unless he alleges facts establishing he is in imminent

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danger. Plaintiff shall have thirty days to file a second amended complaint. If plaintiff chooses

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not to file a second amended complaint, the court will screen only his first amended complaint

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and claims alleged in the original complaint will not be considered.

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III.

Amending the Complaint
Plaintiff’s original complaint alleged claims against several HDSP employees. ECF No.

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1. He claimed that his Eighth Amendment rights were violated when defendants failed to treat

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him for PTSD. ECF No. 1 at 6-8. The complaint alleged four of the five named defendants

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violated plaintiff’s rights when they reviewed his 602 grievance and failed to take action to ensure

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plaintiff was treated for PTSD. Id. The first amended complaint alleges three defendants

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employed at CSP-SAC violated his Eighth Amendment rights by intentionally misdiagnosing him

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so that they would not have to treat his PTSD. ECF No. 7 at 3. If plaintiff chooses to file a

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second amended complaint, he is advised of the following legal standards.

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A.

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Plaintiff’s original complaint stated that he filed a grievance complaining about his mental

Legal Standard for Liability as Part of the Grievance Process

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health diagnosis and that several defendants are liable under the Eighth Amendment because they

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reviewed plaintiff’s 602 grievance and failed to take action to have plaintiff treated for PTSD.

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ECF No. 1 at 6-8.

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To the extent plaintiff seeks to bring a claim related to deficiencies in the processing of his

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grievance, he should keep in mind that “inmates lack a separate constitutional entitlement to a

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specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

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(citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (‘There is no legitimate claim of

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entitlement to a grievance procedure.”)). Accordingly, the prison grievance procedure does not

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confer any substantive constitutional rights upon inmates and actions in reviewing and denying

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inmate appeals generally do not serve as a basis for liability under section 1983. Id. Put another

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way, prison officials are not required under federal law to process inmate grievances in a specific

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way or to respond to them in a favorable manner. The Seventh Circuit has observed that
[o]nly persons who cause or participate in the violations are
responsible. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A guard
who stands and watches while another guard beats a prisoner
violates the Constitution; a guard who rejects an administrative
complaint about a completed act of misconduct does not.

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George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (internal citations omitted). However,

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because prison administrators cannot willfully turn a blind eye to constitutional violations being

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committed by subordinates, an individual who denies an inmate appeal and who had the authority

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and opportunity to prevent an ongoing constitutional violation could potentially be subject to

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liability if the individual knew about an existing or impending violation and failed to prevent it.

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Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006). Any claims based solely on a defendant’s

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status as a “reviewer” of plaintiff’s grievance will be subject to dismissal upon screening if

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plaintiff does not allege facts showing their involvement in the violations of his rights.

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B.

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Plaintiff also made allegations in his original and first amended complaints that

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Legal Standard Under the Eighth Amendment

defendants are liable under the Eighth Amendment for deliberate indifference related to his

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mental health treatment.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett, 439 F.3d at 1096, (quoting

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Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) “a ‘serious

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medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

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response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d

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1050, 1059-60 (9th Cir. 1992) (citation and internal quotation marks omitted), overruled on other

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grounds WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).

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Deliberate indifference is established only where the defendant subjectively “knows of and

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disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057

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(9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate

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indifference can be established “by showing (a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d

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at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high

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risk of harm that is either known or so obvious that it should be known”) is insufficient to

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establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5

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(1994) (citations omitted).

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A difference of opinion between an inmate and prison medical personnel—or between

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medical professionals—regarding appropriate medical diagnosis and treatment is not enough to

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establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

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Toguchi, 391 F.3d at 1058. Additionally, “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. Medical malpractice does not become a constitutional violation

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merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. A disagreement regarding

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diagnoses is not sufficient to state a claim for deliberate indifference in violation of the Eighth

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Amendment.

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IV.

Plaintiff’s Access to Legal Property
Plaintiff states in his request for a court order that he needs access to his legal property in

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order to file an amended complaint, because without his paperwork he does not know the case

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number associated with this action or the names of the defendants he wants to add. ECF No. 6. It

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appears as if this issue has been resolved because plaintiff has filed an amended complaint that is

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captioned with the appropriate case number and names CSP-SAC defendants. The motion will

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therefore be denied as moot. However, though it appears plaintiff’s paperwork has been returned,

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to assist plaintiff in the event he chooses to file a second amended complaint, the Clerk of the

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Court will be directed to send plaintiff a copy of both the original and first amended complaints.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall have thirty days from service of this order to file a second amended

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complaint containing all of his allegations in one complete document. If plaintiff chooses not to

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file a second amended complaint, the court will proceed to screen the first amended complaint

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and any claims in the original complaint will not be considered.

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2. The Clerk of the Court is directed to send plaintiff a copy of both the original

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complaint (ECF No. 1) and the first amended complaint (ECF No. 7) and a copy of the prisoner

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complaint form used in this district.

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3. Plaintiff’s request for a court order (ECF No. 6) is denied as moot.
DATED: October 17, 2016

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