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)

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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

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