Baxter v. California Forensic Medical Group et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 12/1/16 ORDERING that plaintiff's 2 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. Plaintiff's complaint is DISMISSED with 30 days leave to amend.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY HARRISON BAXTER,

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No. 2:16-cv-2495 KJN P

Plaintiff,
v.

ORDER

CALIFORNIA FORENSIC MEDICAL
GROUP, et al.,
Defendants.

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Plaintiff is a county jail inmate, proceeding without counsel. Plaintiff seeks relief

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

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

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U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See

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28 U.S.C. § 636(c).

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
(ECF Nos. 2 & 7.) 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. 28 U.S.C.

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§§ 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 alleges that he suffers from chronic lower back pain from an auto accident in

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1997-98. Plaintiff claims that he only received temporary remedies when he filed administrative

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appeals, and that he’s only received medical care on two separate occasions when he threatened

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to bring this § 1983 civil rights suit. Plaintiff alleges he is forced to live with chronic pain.

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Plaintiff names as defendants: the Medical Director of the California Forensic Medical Group,

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Shasta County, the Shasta County Sheriff’s Department, and Tom Bosenko, the Sheriff of Shasta

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County. Plaintiff seeks injunctive relief in the form of “adequate medical care,” including

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medication, and a back brace, as well as money damages, for the alleged violation of his Eighth

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Amendment rights.

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First, plaintiff fails to include specific charging allegations as to each defendant.

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Although plaintiff may be able to state a cognizable Eighth Amendment claim alleging deliberate

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indifference to his serious medical needs, plaintiff must include specific factual allegations as to

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what each defendant did, or did not, that allegedly violated plaintiff’s rights.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no
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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient). Thus, for example, allegations based solely on the sheriff’s

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supervisory role over the jail are insufficient to state a cognizable civil rights claim.

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Second, in order to state a cognizable claim based on medical care, plaintiff must allege

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facts showing that each defendant acted with deliberate indifference to plaintiff’s serious medical

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needs. See Estelle v. Gamble, 429 U.S. 97 (1976); Simmons v. Navajo County, 609 F.3d 1011,

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1017 (9th Cir. 2010) (“Although the Fourteenth Amendment’s Due Process Clause, rather than

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the Eighth Amendment’s protection against cruel and unusual punishment, applies to pretrial

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detainees, we apply the same standards in both cases.”) (internal citations omitted). In the Ninth

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Circuit, a deliberate indifference claim has two components:

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First, the plaintiff must show a “serious medical need” by
demonstrating that “failure to treat a prisoner’s condition could
result in further significant injury or the ‘unnecessary and wanton
infliction of pain.’”
Second, the plaintiff must show the
defendant’s response to the need was deliberately indifferent. This
second prong -- defendant’s response to the need was deliberately
indifferent -- is satisfied by showing (a) a purposeful act or failure
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to respond to a prisoner’s pain or possible medical need and (b)
harm caused by the indifference. Indifference “may appear when
prison officials deny, delay or intentionally interfere with medical
treatment, or it may be shown by the way in which prison
physicians provide medical care.”
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted).
Plaintiff is cautioned that, in applying the deliberate indifference standard, the Ninth

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Circuit has held that before it can be said that a prisoner’s civil rights have been abridged, “the

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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or

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‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d

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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). A difference of opinion between

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medical professionals concerning the appropriate course of treatment generally does not amount

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to deliberate indifference to serious medical needs. Toguchi v. Soon Hwang Chung, 391 F.3d

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1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In addition,

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mere differences of opinion between a prisoner and prison medical staff as to the proper course of

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treatment for a medical condition do not give rise to a § 1983 claim. See Snow v. McDaniel, 681

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F.3d 978, 988 (9th Cir. 2012); Toguchi, 391 F.3d at 1058.

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Finally, delays in providing medical care may manifest deliberate indifference. See

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Estelle, 429 U.S. at 104-05. However, to establish a deliberate indifference claim arising from a

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delay in providing medical care, a plaintiff must allege facts showing that the delay was harmful.

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See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); Hunt v. Dental Dep’t, 865 F.2d 198,

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200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

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1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

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provide additional support for the inmate’s claim that the defendant was deliberately indifferent to

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his needs.” Jett, 439 F.3d at 1096.

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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, however, grants 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 an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Unrelated claims against different defendants must be pursued in multiple

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lawsuits.
The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party
asserting a claim . . . may join, [] as independent or as alternate
claims, as many claims . . . as the party has against an opposing
party.’ Thus multiple claims against a single party are fine, but
Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2. Unrelated claims against different
defendants belong in different suits, not only to prevent the sort of
morass [a multiple claim, multiple defendant] suit produce[s], but
also to ensure that prisoners pay the required filing fees -- for the
Prison Litigation Reform Act limits to 3 the number of frivolous
suits or appeals that any prisoner may file without prepayment of
the required fees. 28 U.S.C. § 1915(g).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).

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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. Plaintiff’s complaint is dismissed.

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4. 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

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dismissal of this action.

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Dated: December 1, 2016

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/baxt2495.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY HARRISON BAXTER,

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No. 2:16-cv-2495 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

CALIFORNIA FORENSIC MEDICAL
GROUP, et al.,
Defendants.

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

DATED:

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________________________________
Plaintiff