Bender v. Shazzard et al
Filing
9
ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/2017 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 3 request for the appointment of counsel is DENIED. The complaint is DISMISSED with leave to amend within 30 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
FLOYD EUGENE BENDER,
12
Plaintiff,
13
14
No. 2:16-cv-2253-EFB P
v.
SHAZZARD, et al.,
15
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO 28
U.S.C. § 1915A
Defendants.
16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
17
18
19
U.S.C. § 1983. He seeks leave to proceed in forma pauperis and the appointment of counsel.
I.
Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).
20
21
Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect
22
and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.
23
§ 1915(b)(1) and (2).
24
II.
Screening Requirement and Standards
25
Federal courts must engage in a preliminary screening of cases in which prisoners seek
26
redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
27
§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
28
of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
1
1
relief may be granted,” or “seeks monetary relief from a defendant who is immune from such
2
relief.” Id. § 1915A(b).
3
A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
4
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and
5
plain statement of the claim showing that the pleader is entitled to relief, in order to give the
6
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
7
Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
8
While the complaint must comply with the “short and plaint statement” requirements of Rule 8,
9
its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556
10
U.S. 662, 679 (2009).
11
To avoid dismissal for failure to state a claim a complaint must contain more than “naked
12
assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of
13
action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of
14
a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at
15
678.
16
Furthermore, a claim upon which the court can grant relief must have facial plausibility.
17
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
18
content that allows the court to draw the reasonable inference that the defendant is liable for the
19
misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a
20
claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.
21
Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the
22
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
23
III.
24
Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it
25
must be dismissed for failure to state a claim. According to the complaint, plaintiff attempted
26
suicide by hanging himself with string on March 9, 2016. ECF No. 1 at 3.1 Thereafter, defendant
27
1
28
For ease of reference, all references to page numbers in the complaint are to those
assigned via the court’s electronic filing system.
2
1
Dr. Shazzad accused plaintiff of concealing additional string in his rectum and asked plaintiff if
2
he could check for it. Id. at 4. When plaintiff refused, defendant ordered medical staff to hold
3
plaintiff down and to subdue him with “3 or 4 shots of psychotic medication.” Id. Plaintiff
4
awoke around twenty minutes later, with his “butt hurting” and “covered in spit and urine.” Id. at
5
4-5. Plaintiff claims that the shots were given in order to sedate plaintiff for the “sole purpose of
6
sexually violating” him. Id. at 5. Plaintiff alleges he attempted suicide a second time, and was
7
again given “emergency shots” against his will. Id. at 5. Plaintiff alleges that the shots were
8
given to “silence” and “medically abuse” him. Id. at 6. Plaintiff contends he should have been
9
placed on “1 on 1” suicide watch instead. Id. Plaintiff claims that defendants Dr. Shazzad,
10
warden Joe Medina, and the warden of California Medical Facility violated his Eighth and
11
Fourteenth Amendment rights. As set forth below, the allegations fail to state a cognizable claim
12
under the applicable standards.
13
First, plaintiff fails to state a claim against either of the defendant wardens because he
14
fails to plead any facts showing how either was personally involved in the alleged violation of his
15
rights. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)
16
that a right secured by the Constitution or laws of the United States was violated, and (2) that the
17
alleged violation was committed by a person acting under the color of state law. West v. Atkins,
18
487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the
19
facts establish the defendant’s personal involvement in the constitutional deprivation or a causal
20
connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.
21
See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44
22
(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable
23
for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679
24
(2009).
25
Second, plaintiff has not alleged that the forced medications lacked a legitimate
26
penological purpose, such as preventing imminent serious harm to plaintiff or others. While
27
prisoners have a liberty interest in avoiding the “unwanted administration of antipsychotic drugs,”
28
imposing unwanted medical treatment on an inmate does not constitute a due process violation if
3
1
the treatment is “reasonably related to legitimate penological interests.” Washington v. Harper,
2
494 U.S. 210, 221, 223 (1990); id. at 225 (“The State has undertaken the obligation to provide
3
prisoners with medical treatment consistent not only with their own medical interests, but also
4
with the needs of the institution. Prison administrators have not only an interest in ensuring the
5
safety of prison staffs and administrative personnel, . . . but the duty to take reasonable measures
6
for the prisoners’ own safety.”); see also Runnels v. Rosendale, 499 F.2d 733, 735 (9th Cir. 1974)
7
(“Allegations that prison medical personnel preformed major surgical procedures upon the body
8
of an inmate, without his consent and over his known objections, that were not required to
9
preserve his life or further a compelling interest of imprisonment or prison security, may [be
10
sufficient to state a cognizable Fourteenth Amendment due process claim].”). By plaintiff’s own
11
terms, the shots were administered on an “emergency” basis, as he had just attempted suicide and
12
was resisting staff efforts to prevent another attempt. Given the circumstances alleged, the
13
allegation that plaintiff was forcibly medicated for the purpose of sexual abuse is not plausible in
14
light of plaintiff’s other allegations in the complaint.
15
Third, the allegations are insufficient to state a proper claim for relief under the Eighth
16
Amendment. A prison official violates the Eighth Amendment’s proscription of cruel and
17
unusual punishment where he or she deprives a prisoner of the minimal civilized measure of life’s
18
necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834
19
(1994). To state such an Eighth Amendment claim, a prisoner must allege facts showing that (1)
20
the defendant prison official’s conduct deprived him or her of the minimal civilized measure of
21
life’s necessities and (2) that the defendant acted with deliberate indifference to the prisoner’s
22
health or safety. Id. at 834. Plaintiff’s scant allegations fail to demonstrate that any particular
23
state actor acted with the requisite deliberate indifference in forcing any medical treatment on
24
plaintiff, or that in doing so, plaintiff was exposed to a substantial risk of serious harm. The
25
allegations thus fail to state a cognizable claim for cruel and unusual punishment.
26
For an allegedly inappropriate body search to violate the Eighth Amendment, the plaintiff
27
must demonstrate that the search amounted to the unnecessary and wanton infliction of pain.
28
Jordan v. Gardner, 986 F.2d 1521, 1525-26 (9th Cir. 1993) (concluding that “momentary
4
1
discomfort” is not enough). It is not clear from the complaint whether defendant Shazzad
2
actually followed through with a body cavity search, and if he did, whether that search amounted
3
to the unnecessary and wanton infliction of pain.
4
Moreover, to succeed on an Eighth Amendment claim predicated on the denial of medical
5
care, a plaintiff must establish that he had a serious medical need and that the defendant’s
6
response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
7
2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the
8
failure to treat the condition could result in further significant injury or the unnecessary and
9
wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the
10
denial, delay or intentional interference with medical treatment or by the way in which medical
11
care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
12
To act with deliberate indifference, a prison official must both be aware of facts from
13
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
14
draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if
15
he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing
16
to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate
17
altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,
18
884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,
19
even if some treatment is prescribed, may constitute deliberate indifference in a particular case.
20
Id.
21
It is important to differentiate common law negligence claims of malpractice from claims
22
predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.
23
In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
24
support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
25
1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391
26
F.3d 1051, 1057 (9th Cir. 2004).
27
28
Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable
legal theory against a proper defendant and sufficient facts in support of that cognizable legal
5
1
theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must
2
afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).
3
Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set
4
forth the claims and allegations against each defendant. Any amended complaint must cure the
5
deficiencies identified above and also adhere to the following requirements:
6
Any amended complaint must identify as a defendant only persons who personally
7
participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
8
Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
9
constitutional right if he does an act, participates in another’s act or omits to perform an act he is
10
legally required to do that causes the alleged deprivation).
11
It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).
12
Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George
13
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
14
Any amended complaint must be written or typed so that it so that it is complete in itself
15
without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended
16
complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
17
earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
18
F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
19
being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
20
1967)).
21
The court cautions plaintiff that failure to comply with the Federal Rules of Civil
22
Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.
23
See E.D. Cal. L.R. 110.
24
IV.
25
Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require
26
counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.
27
Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney
28
to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
6
1
F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
2
When determining whether “exceptional circumstances” exist, the court must consider the
3
likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro
4
se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970
5
(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional
6
circumstances in this case.
7
8
9
V.
Summary of Order
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.
10
2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected
11
in accordance with the notice to the California Department of Corrections and
12
Rehabilitation filed concurrently herewith.
13
3. Plaintiff’s request for the appointment of counsel (ECF No. 3) is denied.
14
4. The complaint is dismissed with leave to amend within 30 days. The complaint
15
must bear the docket number assigned to this case and be titled “Amended
16
Complaint.” Failure to comply with this order may result in dismissal of this
17
action for failure to state a claim. If plaintiff files an amended complaint stating a
18
cognizable claim the court will proceed with service of process by the United
19
States Marshal.
20
Dated: August 2, 2017.
21
22
23
24
25
26
27
28
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?