Ellis v. Baraceros et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 11/16/2016 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's 6 motion to amend is DENIED as moot. Plaintiff's amended complaint is DISMISSED. Plaintiff has 30 days to file a second amended complaint.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN ELLIS,

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Plaintiff,

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No. 2:16-cv-1083 JAM KJN P

v.

ORDER

LYN BARACEROS, et al.,

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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).

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I.

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Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

(ECF No. 2.)
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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II.

Motion to Amend the Complaint

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Plaintiff filed a motion to amend the complaint on August 9, 2016 (ECF No. 6) and an

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Amended Complaint on September 6, 20161 (ECF No. 8). Plaintiff may amend his complaint

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once as a matter of right. See Fed. R. Civ. P. 15(a)(1)(A). Thus, the Court accepts plaintiff’s

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amended complaint for filing on September 6, 2016. Accordingly, plaintiff’s motion for leave to

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amend his complaint is denied as moot.

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III.

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Screening Standards
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 when 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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superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A]

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judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal

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theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 1227.

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Plaintiff amended his complaint to correct the name of defendant Lyn Baraceros to Lami P.
Baraceros. (ECF No. 6 at 1, No. 8 at 23.)
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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most

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favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395

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U.S. 411, 421 (1969).

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IV.

Amended Complaint

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The amended complaint states that plaintiff, who is a fifty-five year-old paraplegic, suffers

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from multiple medical problems, including degenerative joint disorder, which causes him chronic

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pain. (ECF No. 8 at 8.) Since February 2014, plaintiff was prescribed pain medication to combat

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his chronic pain and to increase his ability to perform daily physical activities. (Id.) Following

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plaintiff’s transfer to the California Medical Facility (CMF), defendant Dr. Francis Ko, M.D., a

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physician at CMF, continued plaintiff’s chronic pain medication on August 18, 2014. (Id. at 9.)

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The amended complaint alleges that, on September 10, 2014, defendant Lami P. Baraceros,

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plaintiff’s medication nurse at CMF, completed a CDCR Form 128C Medication Management

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Chrono stating that plaintiff refused to “come out for meds.” (Id.) Thereafter, plaintiff was

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warned that if he continued to refuse his medication, his prescription would be discontinued, and

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that if he felt he did not need medication every day, he should request a “taken as needed” (prn)

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prescription. (Id.) On September 14, 2014, plaintiff submitted a Health Care Service Request

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Form 7362 requesting that his pain medication be prescribed as prn “taken as needed.” (Id.)

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Plaintiff was ducated to Dr. Ko on September 18, 2014, to discuss Baraceros’ September 10, 2014

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Form 128C. (Id.) On September 26, 2014, plaintiff’s chronic pain medication (morphine)

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prescription was changed to prn, and, upon his request, was reduced from three times daily to

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once daily. (Id.)

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Later, plaintiff asked Baraceros if she had written a Form 128C against him, and she

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responded, “No! I didn’t write it.” (Id.) Plaintiff then showed Baraceros the Form 128C she had

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written and told Baraceros that he did not trust her. (Id. at 9-10.) Baraceros told plaintiff to “take

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his meds and go” and that she would have his cell searched. (Id. at 10.) Plaintiff alleges that,

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after this altercation, Baraceros “began carrying out a series of unprofessional treatment, attitude,

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and behaviors towards plaintiff (different than how she treated other inmates),” which included

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denying plaintiff his chronic pain medication “by deliberately passing up his cell during door-to-

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door medication pass; ignoring [plaintiff’s] request for medical sick call slips (7362 Forms); and,

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displaying an open dislike towards [plaintiff] in front of both officers and inmates.” (Id.) When

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plaintiff told Baraceros he intended to file a grievance against her for unprofessional nursing

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performance, she “tossed” him two 7362 Forms and began a “campaign of harassments” against

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him. (Id.)
On April 14, 2015, plaintiff filed a grievance against Baraceros, which was “heard” and

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“finalized” “to no avail.” (Id. at 11.) Plaintiff alleges that Baraceros retaliated against him by

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falsely accusing him of his hiding his medication, which resulted in his cell being searched. (Id.)

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Plaintiff “was forced to skip taking his medication” on some days when Baraceros worked to

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avoid further harassment and retaliation. (Id.) When Baraceros “continued with her retaliatory

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acts” toward plaintiff, plaintiff filed a complaint against Baraceros for retaliation and harassment.

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(Id.)

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Thereafter, on July 23, 2015, plaintiff told Baraceros that she “just will not learn” and that

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“writing her up is futile,” upon which Baraceros “slammed” plaintiff’s medication cup on the

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medical cart counter. (Id.) Baraceros then told plaintiff that she would have his pain medication

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stopped. (Id.) When plaintiff stated that only his doctor could stop his pain medication,

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Baraceros responded, “I was a Supervising Nurse, I can have your pain medication stopped,

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permanently.” (Id.) When Plaintiff reiterated that only his primary care doctor could stop his

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medication, Baraceros stated, “We’ll see!” (Id. at 12.)

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On August 18, 2015, defendant Narinda Saukhla, M.D., a primary care physician at CMF,
changed plaintiff’s morphine medication from prn “taken as needed” to “taken every evening,”
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without plaintiff’s knowledge. (Id.) When plaintiff missed taking his medication, Baraceros

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wrote another Form 128C. (Id.) Plaintiff alleges that he would not have “missed” his medication

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had his prescription not been changed from prn “as needed.” (Id. at 12-13.) Plaintiff alleges that

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Baraceros “secretly and deceptively” documented plaintiff as refusing his medication in an

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attempt to have his medication discontinued permanently. (Id. at 13.) The amended complaint

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further alleges that, on September 23, 2015, Baraceros told a correctional officer to watch only

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plaintiff (and not other inmates) as he took his medication. (Id.)

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On October 23, 2015, Dr. Ko discontinued plaintiff’s chronic pain medication per

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Baraceros’ October 21, 2015 Form 128C and e-mail to Dr. Ko documenting plaintiff’s failure to

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take his medication. (Id.) On October 26, 2015, when plaintiff went to the pill line to request his

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medication, Baraceros told him that she had his medication discontinued. (Id.)

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On October 27, 2015, plaintiff saw Dr. Ko who reported that Baraceros told him that

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plaintiff had missed two weeks of medication, diverted his medication, and possibly engaged in

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illegal drug use, and that Baraceros recommended that plaintiff’s medication be discontinued.

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(Id.at 13-14.) Plaintiff explained that Baraceros’ accusations were false, that they had a long

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history of not getting along, and that Baraceros was retaliating against plaintiff by interfering with

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his pain medication. (Id.at 14.) That very same day, Dr. Ko renewed plaintiff’s pain medication

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prescription to be taken every evening. (Id.) Baraceros did not tell plaintiff about the renewal

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until the next day, October 28, 2015. (Id.) On October 29, 2015, plaintiff missed his medication

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because he was asleep, and his medication was discontinued that day. (Id. at 14-15.)

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As a result of the discontinuance, plaintiff filed several CDCR 22 Forms with various

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supervising nurses, stating that Baraceros was retaliating against him by trying to have his chronic

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pain medication prescription discontinued permanently and by making false accusations against

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plaintiff to Dr. Ko. (Id. at 15.)

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On October 31, 2015, plaintiff submitted a Health Care Service Request Form 7362

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inquiring why Dr. Ko discontinued plaintiff’s chronic pain medication on October 29, 2015, after

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having renewed it just two days earlier. (Id.) On November 9, 2015, Dr. Ko explained to

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plaintiff that his pain medication was discontinued permanently for several reasons, including a
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Form 128C documenting plaintiff’s refusal to provide a urine sample per Dr. Ko’s October 27,

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2015 request2; plaintiff’s violation of the February 14, 2014 pain contract; and Baracero’s

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October 29, 2015 e-mail to Dr. Ko recommending that plaintiff’s chronic pain medication be

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discontinued. (Id.) Plaintiff alleges that the Form 128C documenting his failure to take a urine

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test and the pain contract were “bogus” or non-existent. (Id.) Dr. Ko told plaintiff that he was

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upholding his decision to discontinue plaintiff’s chronic pain medication permanently. (Id.)

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On December 29, 2015, plaintiff submitted a Form 7362, stating that since discontinuation

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of his pain medication, he has experienced “serious pain” that has affected his daily activities.

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(Id.) Plaintiff submitted another Form 7362 on January 27, 2016, complaining that since the

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discontinuation of his chronic pain medication on October 23, 2015, and October 29, 2015, it has

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been difficult for him to execute fully his work requirements due to serious chronic pain in his

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back and shoulders. (Id.) Plaintiff stated that he had to miss four days of work because of the

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pain and requested that he be placed on chronic pain medication. (Id.)

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On February 2, 2016, plaintiff filed a grievance because he had not been ducated to a

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doctor regarding his 7362 Forms. (Id.) On February 9, 2016, plaintiff was brought to the B-1

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emergency clinic to receive treatment for his serious chronic pain. (Id. at 16-17.) Dr. Osman

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prescribed plaintiff pain medication and made him an appointment with a different primary care

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doctor. (Id. at 17.) The pain management team reinstated plaintiff’s chronic pain medication and

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granted plaintiff’s grievance, and, on March 1, 2016, plaintiff was prescribed morphine, prn

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“taken as needed,” once daily at bedtime. (Id.)

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V.

Analysis

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A. First Amendment Claims Against Defendant Baraceros

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“Prisoners have a First Amendment right to file grievances against prison officials and to

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be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)

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(citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Allegations of retaliation against

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a prisoner’s First Amendment rights to speech or to petition the government may support a

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Plaintiff told Dr. Ko that nobody came to collect his urine until November 9, 2015. (ECF No. 8
at 16.)
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section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985); Pratt v. Rowland,

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65 F.3d 802, 806 (9th Cir. 1995).

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff alleges that defendant Baraceros retaliated against plaintiff’s expressed intent to

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exercise his First Amendment right to file grievances. (ECF No. 8 at 18-19.) Plaintiff claims that

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Baraceros retaliated against plaintiff by: “continuously” making false accusations that plaintiff

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hid his medication, which resulted in the search of “his cell, person, and property”; refusing

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plaintiff his medication “by constantly passing up his cell during door-to-door medication pass”;

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refusing plaintiff sick call slips; “secretly” telling staff to watch only plaintiff take his medication;

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and deceiving plaintiff about his prescription, which resulted in the permanent discontinuation of

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his pain medication. (Id.)

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While it appears that plaintiff may be able to state a viable First Amendment claim against

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Baraceros, plaintiff has failed to allege that Baraceros’ actions were not in furtherance of

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legitimate correctional roles. The court will, however, grant leave to file a second amended

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complaint. Plaintiff is cautioned that any allegations regarding Baracero’s pre-grievance conduct

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fail to state a claim for retaliation because they preceded plaintiff’s protected conduct.

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B. Eighth Amendment Claims Against Defendants Baraceros, Dr. Ko, and Dr. Saukhla

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The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment

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prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Estelle v.

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Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual

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punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious

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deprivation and that subjectively prison officials acted with deliberate indifference in allowing or

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causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

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Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the

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

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indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical

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claim has two elements: “the seriousness of the prisoner’s medical need and the nature of the

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defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991),

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overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en

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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 the serious medical need with deliberate indifference. Id. at 834. In

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general, deliberate indifference may be shown when prison officials deny, delay, or intentionally

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interfere with medical treatment, or may be shown by the way in which prison officials provide

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medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can

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be said that a prisoner’s civil rights have been abridged with regard to medical care, however,

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“the indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or

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‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Labs., 622 F.2d

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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). 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, 475 U.S. at 319).

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-

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05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff

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must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994);
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McGuckin, 974 F.2d at 1059. “A prisoner need not show his harm was substantial; however,

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such would provide additional support for the inmate’s claim that the defendant was deliberately

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indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Finally, mere differences of opinion between a prisoner and prison medical staff as to

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proper medical care do not give rise to a § 1983 claim. Toguchi v. Chung, 391 F.3d 1051, 1058

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(9th Cir. 2004) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)); Sanchez v. Vild,

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891 F.2d 240, 242 (9th Cir. 1989).

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Plaintiff alleges that his medical condition constitutes a serious medical need that affects

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his daily activities, and that defendants intentionally denied, interfered, and delayed his access to

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medical care and treatment, causing him “severe pain and discomfort.” (ECF No. 8 at 19.)

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Plaintiff alleges that defendants “have acted intentionally” and “with knowledge of plaintiff’s

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suffering and the risk of serious harm that resulted from their actions or refusal to act.” (Id.)

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As to Dr. Saukhla, plaintiff has failed to allege any facts showing how she played a role in

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denying, delaying, or interfering with plaintiff’s medical care. See Estelle, 429 U.S. at 107.

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Plaintiff’s amended complaint contains only one allegation related to Dr. Saukhla: that, on August

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18, 2015, Dr. Saukhla changed plaintiff’s morphine medication from prn “taken as needed” to

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“taken every evening,” without plaintiff’s knowledge. (ECF No. 8 at 12.) Plaintiff’s allegations

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concerning the events of August 18, 2015, without more, fail to rise to the level of deliberate

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indifference. Arguably, Dr. Saukhla did not provide plaintiff with the medical care plaintiff

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wanted—a prn “taken as needed” prescription. However, a difference of opinion as to medical

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treatment does not constitute deliberate indifference. See Toguchi, 391 F.3d at 1058. The court

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will, however, grant leave to file a second amended complaint.

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Plaintiff’s allegations as to Dr. Ko and Baraceros, viewed in the light most favorable to

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him, could support a finding of deliberate indifference to plaintiff’s serious medical needs. See

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Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (in order to show deliberate indifference

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by defendants, the plaintiff must show defendants were aware of his injuries and denied plaintiff’s

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requests for medical treatment). Plaintiff has set forth specific facts that could support a finding

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that his chronic pain medication prescription was discontinued for non-medical reasons and that
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Dr. Ko and Baraceros were aware of the seriousness of plaintiff’s pain but denied, delayed, or

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interfered with his medical treatment. Plaintiff is cautioned, however, that a difference of opinion

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as to medical treatment does not constitute deliberate indifference. See Toguchi, 391 F.3d at

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1058.

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C. Fourteenth Amendment Due Process Claims Against Defendants Baraceros, Dr. Ko,

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and Dr. Saukhla
Plaintiff’s third claim for relief pursuant to the Fourteenth Amendment’s Due Process

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Clause does not apply here as the Fourteenth Amendment generally applies to pretrial detainees.

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See Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010) (“Although the Fourteenth

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Amendment’s Due Process Clause, rather than the Eighth Amendment’s protection against cruel

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and unusual punishment, applies to pretrial detainees, we apply the same standards in both

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cases.”) (internal citations omitted). This claim is redundant as the Eighth Amendment controls

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lack of medical care claims of prisoners. Plaintiff’s third cause of action should therefore be

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dismissed.

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VI.

Conclusion
For the reasons set forth above, plaintiff’s motion for leave to amend (ECF No. 6) is

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denied as moot and plaintiff’s amended complaint is dismissed, with leave to file a second

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amended complaint that meets the substantive legal requirements set forth herein.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s second 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 requirement is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second 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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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s motion to amend is denied as moot;

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4. Plaintiff’s amended complaint is dismissed; and

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5. Plaintiff is granted thirty days from the date of service of this order to file a second

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

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint; failure to file a second

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: November 16, 2016

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elli1803.14am.new

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