McDowell v. Fox et al

Filing 24

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/29/18 ORDERING plaintiff's third amended complaint is dismissed. Plaintiff is granted thirty days from the date of service of this order to file a fourth amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENTHA MCDOWELL,

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No. 2:16-cv-2144 MCE CKD P

Plaintiff,
v.

ORDER

ROBERT W. FOX, et al.,

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Defendants.

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Plaintiff is proceeding with counsel and in forma pauperis with an action for violation of
civil rights under 42 U.S.C. § 1983. Plaintiff has filed a third amended complaint.
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” and / or “labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the

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

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

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Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the

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

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In the § 1983 context, liability only arises by a showing of personal participation by the

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defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). It must be alleged that there is a

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casual connection between the defendant and the claimed injury. Johnson v. Duffy, 588 F.3d

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740, 743-44 (9th Cir. 1978). “A plaintiff must allege facts, not simply conclusions, that show that

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an individual was personally involved in the deprivation of his civil rights.” Barren v.

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Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998).

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Plaintiff claims that in 2008, he was diagnosed with heart disease and a physician at

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Ironwood State Prison (Ironwood) ordered that plaintiff be provided with a “heart healthy” diet

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“low in sodium with a reduction of fat / grease.” Plaintiff asserts that as a result of being denied

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such a diet, he suffered four heart attacks and required heart surgery.
In 2012, plaintiff was transferred to the California Medical Facility (CMF) “due to the

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increase of Plaintiff’s heart disease and other issues.” While at CMF plaintiff complained to

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guards and other CMF staff regarding his diet with such complaints being ignored.
In 2015, while plaintiff was housed at CMF in a unit for “medically fragile” inmates,

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plaintiff was “brutally beaten” by a “mentally ill” inmate housed with plaintiff.

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In his first claim, plaintiff blames defendant Fox, the Warden at CMF and Dr. Deepak B.

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Mehta, physician practicing at CMF, for not providing plaintiff with the diet ordered by the

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doctor at Ironwood. However, plaintiff fails to point to any facts which reasonably suggest either

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defendant had any knowledge of plaintiff’s diet or condition. Plaintiff does not even allege Dr.

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Mehta ever treated plaintiff. Also, plaintiff fails to point to any facts suggesting that plaintiff’s

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failure to obtain the diet he believes he should have received was the result of the actions or

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inaction of either defendant Dr. Mehta or Fox.

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In his second claim, plaintiff asserts defendants Mehta and Fox are responsible for

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plaintiff being attacked by a “mentally ill” inmate. Under the Eighth Amendment, “prison

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officials have a duty to protect prisoners from violence at the hands of other prisoners.” Farmer

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v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks, ellipsis, and citation omitted).

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However, “not . . . every injury suffered by one prisoner at the hands of another . . . translates into

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constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834. A

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prison official may be held liable for an assault suffered by one inmate at the hands of another

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only where the assaulted inmate can show that the injury is sufficiently serious, and that the

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prison official was deliberately indifferent to the risk of harm. Id. at 834, 837.

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There are no allegations that either defendant was aware that housing plaintiff in the unit

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with the inmate that attacked plaintiff presented a serious risk of harm. Most notably, there is no

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allegation that either defendant had any reason to believe the inmate who attacked plaintiff would

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become violent toward plaintiff, even assuming they knew the attacker was “mentally ill.”

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Finally, the court notes that plaintiff identifies Loiuie Escobeli, R.N., Health Care C.E.O

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at the California Institution for Men (CIM) and Dean Borders, Warden at CIM as defendants.

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However, there are no allegations in the third amended complaint about events occurring at CIM,

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except that plaintiff was an inmate there some point, or actions taken by defendant Escobeli or

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Borders.
For all of the foregoing reasons, plaintiff’s third amended complaint fails to state a claim

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upon which relief can be granted and will be dismissed. Because the third amended complaint

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was only the first submitted by plaintiff’s attorney, the court will grant leave to file a fourth

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amended complaint. Counsel should refer to this order and the screening orders issued December

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16, 2016 and June 1, 2017 in drafting the fourth amended complaint. If counsel fails to state a

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claim upon which relief can be granted in the fourth amended complaint, the court will in all

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likelihood recommend that this action be dismissed.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s third amended complaint is dismissed; and

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

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amended complaint. Failure to file a fourth amended complaint in accordance with this order will

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result in a recommendation that this action be dismissed.

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Dated: March 29, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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