Spencer v. Virga et al

Filing 14

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/3/2017 GRANTING plaintiff's 6 , 8 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Th e complaint is DISMISSED with leave to amend within 30 days. IT IS HEREBY RECOMMENDED that plaintiff's 13 request, construed as a motion for injunctive relief, be denied. Motion referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

THURMAN LEROY SPENCER,

12

Plaintiff,

13
14

No. 2:16-cv-0886-JAM-EFB P

v.
TIMOTHY VIRGA, et al.,

15

Defendants.

SCREENING ORDER AND ORDER
GRANTING IFP; FINDINGS AND
RECOMMENDATIONS RECOMMENDING
MOTION FOR INJUNCTIVE RELIEF BE
DENIED

16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

17
18

U.S.C. § 1983. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

19

§ 1915 and a motion for injunctive relief.

20

I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

21
22

Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

23

and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

24

§ 1915(b)(1) and (2).

25

II.

Screening Requirement and Standards

26

Federal courts must engage in a preliminary screening of cases in which prisoners seek

27

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

28

§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
1

1

of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

2

relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

3

relief.” Id. § 1915A(b).

4

A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

5

of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

6

plain statement of the claim showing that the pleader is entitled to relief, in order to give the

7

defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

8

Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

9

While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

10

its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

11

U.S. 662, 679 (2009).

12

To avoid dismissal for failure to state a claim a complaint must contain more than “naked

13

assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

14

action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

15

a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

16

678.

17

Furthermore, a claim upon which the court can grant relief must have facial plausibility.

18

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

19

content that allows the court to draw the reasonable inference that the defendant is liable for the

20

misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

21

claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

22

Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

23

plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

24

III.

25

Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds

26

that the allegations are too vague and conclusory to state a cognizable claim for relief. The

27

named defendants include Warden Timothy Virga, Euraka Daye, and B. Brizendine

28

(psychologist). The “Statement of Claim” alleged in the complaint consists of the following:
2

1

On June 18, 2012 plaintiff attended committee at California State Prison –
Sacramento and informed Timothy Virga – Warden and mental health B.
Brizendine, Z. Haghbin, M. Cook, R. Costa, D. McCarthy and C. Cantrell, plaintiff
was not a mental health candidate under (Department of Mental Health – DMH,
Enhanced Outpatient Program . . . psychiatric services unit). Plaintiff was treated
with (deliberate cruelty). Human waste and urine on the floor in PSU. Unhealthy!

2
3
4
5

ECF No. 1, § IV.
The allegations suggest that plaintiff intends to assert an Eighth Amendment claim based

6
7

on his conditions of confinement. However, plaintiff has not pleaded sufficient facts to state a

8

claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must

9

give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community

10

Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree

11

of particularity overt acts which defendants engaged in that support plaintiff’s claim. Id. Because

12

plaintiff fails to state a claim for relief, the complaint must be dismissed.
Plaintiff will be granted leave to file an amended complaint to allow him another attempt

13
14

to allege a cognizable legal theory against a proper defendant and sufficient facts in support of

15

that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

16

(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

17

their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

18

shall clearly set forth the claims and allegations against each defendant. Any amended complaint

19

must cure the deficiencies identified above and also adhere to the following requirements:

20

Any amended complaint must identify as a defendant only persons who personally

21

participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

22

Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

23

constitutional right if he does an act, participates in another’s act or omits to perform an act he is

24

legally required to do that causes the alleged deprivation).

25

It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

26

Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

27

v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

28

/////
3

1

Any amended complaint must be written or typed so that it so that it is complete in itself

2

without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

3

complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

4

earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

5

F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

6

being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

7

1967)).

8

The court cautions plaintiff that failure to comply with the Federal Rules of Civil

9

Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

10
11
12

See E.D. Cal. L.R. 110.
In addition, the court notes that the following legal standards may apply to plaintiff’s
intended claims for relief.

13

To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

14

constitutional or statutory right; and (2) that the violation was committed by a person acting under

15

the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

16

930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

17

facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

18

connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

19

See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

20

(9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

21

unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

22

Plaintiff must identify the particular person or persons who violated his rights. He must also

23

plead facts showing how that particular person was involved in the alleged violation.

24

The Eighth Amendment protects prisoners from inhumane methods of punishment and

25

from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

26

2006). To show a violation of the Eighth Amendment, plaintiff must allege facts sufficient to

27

support a claim that prison officials knew of and disregarded a substantial risk of serious harm to

28

the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,
4

1

1128 (9th Cir. 1998). Extreme deprivations are required to make out a conditions of confinement

2

claim, and only those deprivations denying the minimal civilized measure of life’s necessities are

3

sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

4

503 U.S. 1, 9 (1992). Prison officials “must provide humane conditions of confinement,”

5

including “adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at 832-33.

6

To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

7

plaintiff must establish that he had a serious medical need and that the defendant’s response to

8

that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

9

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

10

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

11

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

12

delay or intentional interference with medical treatment or by the way in which medical care is

13

provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

14

To act with deliberate indifference, a prison official must both be aware of facts from

15

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

16

draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if

17

he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing

18

to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate

19

altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,

20

884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,

21

even if some treatment is prescribed, may constitute deliberate indifference in a particular case.

22

Id.

23

It is important to differentiate common law negligence claims of malpractice from claims

24

predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.

25

In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

26

support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.

27

1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391

28

F.3d 1051, 1057 (9th Cir. 2004).
5

1
2

IV.

Motion for Injunctive Relief
Plaintiff seeks a court order requiring the warden to release plaintiff’s personal property

3

and prohibiting staff from removing plaintiff’s legal property from his cell. ECF No. 13 at 3.

4

The court construes plaintiff’s request as one for injunctive relief.

5

A preliminary injunction will not issue unless necessary to prevent threatened injury that

6

would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

7

v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

8

F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

9

power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

10

326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

11

must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

12

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

13

injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

14

2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

15

also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

16

the elements of the preliminary injunction test, so that a stronger showing of one element may

17

offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

18

Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

19

going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

20

issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

21

In cases brought by prisoners involving conditions of confinement, any preliminary injunction

22

“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

23

requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

24

U.S.C. § 3626(a)(2).

25

Given the complaint’s vague and conclusory allegations, the court cannot determine

26

whether plaintiff is likely to succeed on his claims, and plaintiff’s request for a preliminary

27

injunction must be denied. Nor is there any evidence that plaintiff is likely to suffer irreparable

28

harm in the absence of preliminary relief. During the course of this action, plaintiff will have the
6

1

opportunity to conduct discovery and present evidence. Presently, however, plaintiff fails to

2

make a clear showing that he is entitled to the extraordinary remedy of a preliminary injunction.

3

Plaintiff also has not shown that the balance of equities tips in his favor or that the injunction he

4

seeks is in the public interest. Therefore, the court recommends that plaintiff’s request, construed

5

as a motion for a preliminary injunction, be denied.

6

V.

7

Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

8

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 6 & 8) is granted.

9

2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

10

in accordance with the notice to the California Department of Corrections and

11

Rehabilitation filed concurrently herewith.

12

3. The complaint is dismissed with leave to amend within 30 days. The complaint

13

must bear the docket number assigned to this case and be titled “Amended

14

Complaint.” Failure to comply with this order will result in dismissal of this

15

action for failure to prosecute. If plaintiff files an amended complaint stating a

16

cognizable claim the court will proceed with service of process by the United

17

States Marshal.

18
19

Further, it is hereby RECOMMENDED that plaintiff’s request (ECF No. 13), construed as
a motion for injunctive relief, be denied.

20

These findings and recommendations are submitted to the United States District Judge

21

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

22

after being served with these findings and recommendations, any party may file written

23

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

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

25

/////

26

/////

27

/////

28

/////
7

1

within the specified time may waive the right to appeal the District Court’s order. Turner v.

2

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

Dated: August 3, 2017.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8