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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FLOYD EUGENE BENDER,

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Plaintiff,

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No. 2:16-cv-2253-EFB P

v.
SHAZZARD, et al.,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO 28
U.S.C. § 1915A

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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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).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have 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 (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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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it

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must be dismissed for failure to state a claim. According to the complaint, plaintiff attempted

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suicide by hanging himself with string on March 9, 2016. ECF No. 1 at 3.1 Thereafter, defendant

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For ease of reference, all references to page numbers in the complaint are to those
assigned via the court’s electronic filing system.
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Dr. Shazzad accused plaintiff of concealing additional string in his rectum and asked plaintiff if

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he could check for it. Id. at 4. When plaintiff refused, defendant ordered medical staff to hold

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plaintiff down and to subdue him with “3 or 4 shots of psychotic medication.” Id. Plaintiff

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awoke around twenty minutes later, with his “butt hurting” and “covered in spit and urine.” Id. at

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4-5. Plaintiff claims that the shots were given in order to sedate plaintiff for the “sole purpose of

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sexually violating” him. Id. at 5. Plaintiff alleges he attempted suicide a second time, and was

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again given “emergency shots” against his will. Id. at 5. Plaintiff alleges that the shots were

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given to “silence” and “medically abuse” him. Id. at 6. Plaintiff contends he should have been

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placed on “1 on 1” suicide watch instead. Id. Plaintiff claims that defendants Dr. Shazzad,

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warden Joe Medina, and the warden of California Medical Facility violated his Eighth and

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Fourteenth Amendment rights. As set forth below, the allegations fail to state a cognizable claim

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under the applicable standards.

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First, plaintiff fails to state a claim against either of the defendant wardens because he

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fails to plead any facts showing how either was personally involved in the alleged violation of his

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rights. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009).

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Second, plaintiff has not alleged that the forced medications lacked a legitimate

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penological purpose, such as preventing imminent serious harm to plaintiff or others. While

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prisoners have a liberty interest in avoiding the “unwanted administration of antipsychotic drugs,”

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imposing unwanted medical treatment on an inmate does not constitute a due process violation if
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the treatment is “reasonably related to legitimate penological interests.” Washington v. Harper,

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494 U.S. 210, 221, 223 (1990); id. at 225 (“The State has undertaken the obligation to provide

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prisoners with medical treatment consistent not only with their own medical interests, but also

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with the needs of the institution. Prison administrators have not only an interest in ensuring the

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safety of prison staffs and administrative personnel, . . . but the duty to take reasonable measures

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for the prisoners’ own safety.”); see also Runnels v. Rosendale, 499 F.2d 733, 735 (9th Cir. 1974)

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(“Allegations that prison medical personnel preformed major surgical procedures upon the body

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of an inmate, without his consent and over his known objections, that were not required to

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preserve his life or further a compelling interest of imprisonment or prison security, may [be

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sufficient to state a cognizable Fourteenth Amendment due process claim].”). By plaintiff’s own

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terms, the shots were administered on an “emergency” basis, as he had just attempted suicide and

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was resisting staff efforts to prevent another attempt. Given the circumstances alleged, the

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allegation that plaintiff was forcibly medicated for the purpose of sexual abuse is not plausible in

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light of plaintiff’s other allegations in the complaint.

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Third, the allegations are insufficient to state a proper claim for relief under the Eighth

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Amendment. A prison official violates the Eighth Amendment’s proscription of cruel and

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unusual punishment where he or she deprives a prisoner of the minimal civilized measure of life’s

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necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994). To state such an Eighth Amendment claim, a prisoner must allege facts showing that (1)

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the defendant prison official’s conduct deprived him or her of the minimal civilized measure of

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life’s necessities and (2) that the defendant acted with deliberate indifference to the prisoner’s

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health or safety. Id. at 834. Plaintiff’s scant allegations fail to demonstrate that any particular

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state actor acted with the requisite deliberate indifference in forcing any medical treatment on

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plaintiff, or that in doing so, plaintiff was exposed to a substantial risk of serious harm. The

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allegations thus fail to state a cognizable claim for cruel and unusual punishment.

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For an allegedly inappropriate body search to violate the Eighth Amendment, the plaintiff

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must demonstrate that the search amounted to the unnecessary and wanton infliction of pain.

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Jordan v. Gardner, 986 F.2d 1521, 1525-26 (9th Cir. 1993) (concluding that “momentary
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discomfort” is not enough). It is not clear from the complaint whether defendant Shazzad

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actually followed through with a body cavity search, and if he did, whether that search amounted

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to the unnecessary and wanton infliction of pain.

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Moreover, to succeed on an Eighth Amendment claim predicated on the denial of medical

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care, a plaintiff must establish that he had a serious medical need and that the defendant’s

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response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the

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failure to treat the condition could result in further significant injury or the unnecessary and

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wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the

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denial, delay or intentional interference with medical treatment or by the way in which medical

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care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

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To act with deliberate indifference, a prison official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he must also

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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if

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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing

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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate

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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,

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884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,

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even if some treatment is prescribed, may constitute deliberate indifference in a particular case.

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Id.

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It is important to differentiate common law negligence claims of malpractice from claims

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predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.

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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.

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1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004).

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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
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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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V.

Summary of Order
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. Plaintiff’s request for the appointment of counsel (ECF No. 3) is denied.

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4. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order may result in dismissal of this

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action for failure to state a claim. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: August 2, 2017.

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