Roseberry v. Ramirez et al

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 5/12/2017 DISMISSING plaintiff's complaint with leave to amend; defendant Seali is DISMISSED from this action; and plaintiff shall file an amended complaint within 30 days.(Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN ROSEBERRY, 12 13 14 15 Plaintiff, vs. ORDER R. RAMIREZ, et al. Defendant. 16 17 No. 2:16-cv-0766-CMK / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 19 636(c) and no other party has been served or appeared in the action. Pending before the court is 20 plaintiff’s complaint (Doc. 1). 21 The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 24 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 25 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 26 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 1 1 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 2 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 3 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 4 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 5 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 6 with at least some degree of particularity overt acts by specific defendants which support the 7 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 8 impossible for the court to conduct the screening required by law when the allegations are vague 9 and conclusory. 10 I. PLAINTIFF’S ALLEGATIONS 11 In his complaint, plaintiff alleges that defendant Ramirez ignored his request to be 12 allowed to go to the medical clinic to get a new oxygen tank when his ran out. He alleges he had 13 to bang on the yard door to get another officer to allow him out to the clinic, which delayed 14 getting his oxygen tank refill for 10 to 15 minutes. He further alleges that he reported this 15 incident to Ramirez’s supervisor, defendant Seali, who never addressed his complaint. 16 17 II. DISCUSSION The treatment a prisoner receives in prison and the conditions under which the 18 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 19 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 20 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of 21 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 22 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 23 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 24 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 25 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 26 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 2 1 such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 2 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 3 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 4 official must have a “sufficiently culpable mind.” See id. 5 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 6 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 7 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 8 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 9 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 10 injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 11 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 12 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 13 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 14 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 15 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 16 The requirement of deliberate indifference is less stringent in medical needs cases 17 than in other Eighth Amendment contexts because the responsibility to provide inmates with 18 medical care does not generally conflict with competing penological concerns. See McGuckin, 19 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 20 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 21 1989). The complete denial of medical attention may constitute deliberate indifference. See 22 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 23 treatment, or interference with medical treatment, may also constitute deliberate indifference. 24 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 25 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 26 /// 3 1 Here, plaintiff alleges he was delayed in getting to the clinic for 10 to 15 minutes. 2 He states his oxygen tank was registering empty, and he needed a new tank. However, there is 3 no indication that a slight delay in obtaining a new tank was a significant risk to plaintiff’s 4 immediate health. Plaintiff fails to set forth sufficient facts to state a claim, such as the reason 5 the oxygen is necessary and what happens if he goes without oxygen for a short amount of time. 6 The court finds there is simply not enough facts alleged to find plaintiff has stated a claim against 7 defendant Ramirez. Plaintiff will be provided an opportunity to file an amended complaint in 8 order try to cure the defects in his claim. 9 As to defendant Seali, the only allegation is that defendant Seali failed to act upon 10 plaintiff’s complaint about Ramirez’s behavior. There is no indication that defendant Seali was 11 involved in the incident at all. 12 Supervisory personnel are generally not liable under § 1983 for the actions of their 13 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 14 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 15 violations of subordinates if the supervisor participated in or directed the violations. See id. The 16 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 17 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 18 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 19 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 20 personnel who implement a policy so deficient that the policy itself is a repudiation of 21 constitutional rights and the moving force behind a constitutional violation may, however, be 22 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 23 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 24 When a defendant holds a supervisory position, the causal link between such 25 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 26 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel 2 in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 3 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 4 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 5 6 7 8 9 As there are no allegations to indicate defendant Seali was personally involved, defendant Seali will be dismissed from this action. III. CONCLUSION Because it is possible that the deficiencies in plaintiff’s claim against defendant Ramirez may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to 10 dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) 11 (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes the 12 original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, 13 following dismissal with leave to amend, all claims alleged in the original complaint which are 14 not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th 15 Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior 16 pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 17 amended complaint must be complete in itself without reference to any prior pleading. See id. 18 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 19 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 20 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 21 each named defendant is involved, and must set forth some affirmative link or connection 22 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 23 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 24 Finally, plaintiff is warned that failure to file an amended complaint within the 25 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 26 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 5 1 with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 2 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s complaint is dismissed with leave to amend; 5 2. Defendant Seali is dismissed from this action; and 6 2. Plaintiff shall file an amended complaint within 30 days of the date of 7 service of this order. 8 9 10 11 12 DATED: May 12, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6

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