Johnson v. Chau et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 11/22/16 ORDERING that Plaintiff's request for leave to proceed in forma pauperis is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The Clerk of the Court is directed to scan plaintiff's signature page (ECF No. 8 at 2) into his complaint (ECF No. 1 ) as page six. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court shall send plaintiff the form for filing a civil rights action by a prisoner.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JOHNSON,

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No. 2:16-cv-1536 KJN P

Plaintiff,

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v.

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J. CHAN, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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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.

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28 U.S.C. §§ 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 to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s 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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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.

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

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

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).
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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff’s original complaint did not bear his signature; thus, plaintiff was provided an

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opportunity to remedy the oversight. On August 1, 2016, plaintiff provided a signature page.

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The Clerk of the Court is directed to scan plaintiff’s signature page (ECF No. 8 at 2) into his

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complaint (ECF No. 1) as page six.

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The court now screens plaintiff’s complaint. Plaintiff names the following physicians as

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defendants: J. Chau, G. Pettersen, R. Rudas, and C. Smith. Plaintiff alleges that he suffers from a

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“multilevel degenerative spondylosis,” which causes him high levels of pain for which he

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previously was prescribed tramadol or morphine. (ECF No. 1 at 3.) However, when he was

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transferred to Mule Creek State Prison, plaintiff avers that he was taken off these medications

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without a medical explanation and placed on methadone and naproxen for pain. Plaintiff

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contends that he has repeatedly explained to these defendants that these medications do not

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relieve the pain, but they refuse to return plaintiff to the medications that work.

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The Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits deliberate

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indifference to the serious medical needs of prisoners. McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992). A claim of medical indifference requires (1) a serious medical need, and (2) a

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deliberately indifferent response by defendant. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006). The deliberate indifference standard is met by showing (a) a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Id.

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Where a prisoner alleges deliberate indifference based on a delay in medical treatment, the

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prisoner must show that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-

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46 (9th Cir. 2002); McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison

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Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is

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insufficient to state a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 (citing

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Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Deliberate indifference is a high legal standard.”
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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official

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must not only ‘be aware of the facts from which the inference could be drawn that a substantial

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risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of

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the risk, but was not, then the official has not violated the Eighth Amendment, no matter how

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severe the risk.’” Id. (brackets omitted) (quoting Gibson, 290 F.3d at 1188). Mere indifference,

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negligence, or medical malpractice is not sufficient to support the claim. Broughton v. Cutter

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Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 87, 105-06 (1976)).

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A prisoner can establish deliberate indifference by showing that officials intentionally interfered

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with his medical treatment for reasons unrelated to the prisoner’s medical needs. See Hamilton v.

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Endell, 981 F.2d 1062, 1066 (9th Cir. 1992); Estelle, 429 U.S. at 105. An allegation that prison

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officials deliberately ignored a prisoner’s complaint about the ineffective nature of prescribed

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pain medication and the pain being suffered as a result can, in some circumstances, give rise to a

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constitutional claim. See Chess v. Dovey, 2011 WL 567375, at *21 (E.D. Cal. Feb. 15, 2011)

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(denying summary judgment on Eighth Amendment claim where the doctor “ignored plaintiff’s

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complaint about the ineffective nature of the Tylenol, aspirin and other medications he was being

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given and the pain being suffered as a result”); Franklin v. Dudley, 2010 WL 5477693, at *6

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(E.D. Cal. Dec. 29, 2010) (existence of triable issue of fact as to whether defendant violated

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Eighth Amendment precluded the granting of summary judgment where plaintiff was previously

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prescribed narcotic pain medication but now was given only Motrin, Naprosyn, and Tylenol

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under prison’s no-narcotic policy). However, a prisoner does not have a constitutional right to the

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medication of his choice, and a mere difference of opinion regarding appropriate treatment and

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pain medication is insufficient to give rise to a constitutional claim. Toguchi, 391 F.3d at 1058;

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Wilson v. Borg, 1995 WL 571481, at *2 (9th Cir. Sept. 27, 1995); McMican v. Lewis, 1995 WL

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247177, at *2 (9th Cir. Apr. 27, 1995).

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Here, plaintiff fails to provide specific charging allegations as to each named defendant.

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Plaintiff did not identify which doctor took him off the tramadol or morphine, and whether there

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was a gap between the discontinuation of the morphine and when the methadone prescription
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began. The exhibits appended to the complaint suggest that some of the doctors were only

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involved in the administrative appeal process. First, plaintiff must include specific charging

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allegations as to each defendant within his pleading; defendants are not required to pore through

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exhibits in an effort to determine the nature of plaintiff’s claims. Second, prisoners have no

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stand-alone due process rights related to the administrative grievance process. See Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th

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Cir. 2003) (holding that there is no liberty interest entitling inmates to a specific grievance

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process). Thus, if a doctor involved in the appeals process is named as a defendant, plaintiff must

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provide specific charging allegations explaining how and why such doctor was deliberately

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indifferent to plaintiff’s serious medical needs.
Plaintiff must allege facts as to each doctor’s culpable state of mind; in other words, how

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each named doctor was deliberately indifferent to plaintiff’s serious medical needs. Plaintiff must

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allege facts demonstrating that the change in pain medication is not simply a difference of

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medical opinion, particularly because methadone is often prescribed in place of morphine.

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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

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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.
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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights 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 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 exists

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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 an amended complaint, the original

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

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

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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. The Clerk of the Court is directed to scan plaintiff’s signature page (ECF No. 8 at 2)
into his complaint (ECF No. 1) as page six.

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4. Plaintiff’s complaint is dismissed.

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5. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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6. The Clerk of the Court shall send plaintiff the form for filing a civil rights action by a

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prisoner.

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Dated: November 22, 2016

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JOHNSON,

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No. 2:16-cv-1536 JAM KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

J. CHAU, M.D., et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court’s order
filed______________.
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Amended Complaint

DATED:
________________________________
Plaintiff

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