Calloway v. California Department of Corrections and Rehabilitation et al

Filing 27

ORDER signed by Magistrate Judge Dennis M. Cota on 10/1/2019 DISMISSING plaintiff's first amended complaint with leave to amend; and plaintiff shall file a second amended complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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No. 2:16-CV-2532-WBS-DMC-P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (ECF No. 26).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff names the following as defendants: (1) Total Renal Care, Inc.; (2) Davita

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Healthcare, Inc.; (3) San Joaquin Kidney Clinic, Inc.; (4) San Joaquin General Hospital; (5)

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Segriddy; (6) Carman; (7) Stacy; (8) Denise; (9) Irene; (10) Kent; (11) Jamie; (12) Foroutan; (13)

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K. Min; (14) Alex; (15) Frank; and (16) Butts. See ECF No. 26, pgs. 1-2.

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Plaintiff raises two claims. First, plaintiff alleges that the defendants violated his

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8th Amendment rights by conspiring to do him harm in the course of medical treatment.

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Generally, plaintiff alleges that (1) defendants deprived him of crucial hemodialysis and “declot”

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treatment; (2) defendants isolated him in a hepatitis B room as retaliation for complaining; (3)

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once given treatment, plaintiff was unnecessarily restrained; and (4) he was improperly implanted

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with a catheter in his chest, resulting in a dangerous infection. See ECF No. 26, pgs. 5-8. Plaintiff

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claims that defendant Forountan, a doctor at San Joaquin General Hospital, refused plaintiff’s

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requests to provide him with “declot” treatment. After this denial, he was denied further treatment

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for three weeks. Id.

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Second, plaintiff alleges that his 1st Amendment rights were violated when

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defendants retaliated against him for making grievances regarding their medical treatment and

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reporting a patient murder to the “public health department.” See ECF No. 26, pgs. 9-13.

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Specifically, plaintiff claims that defendants: Segriddy, Carman, Stacy, Denise, Irene, Kent,

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Jamie, Foroutan, Min, Alex, Frank, and Butts conspired to place plaintiff in a hepatitis B isolation

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room for commencing grievance procedures against them, as well as reporting the murder of a

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patient. Id.
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II. DISCUSSION

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Plaintiff has failed to state a claim under 42 U.S.C. § 1983.

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A.

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Causal Connection
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations. See

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Here, plaintiff alleges all the named defendants, generally, conspired to provide

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him with sub-standard medical treatment and cause him harm. However, plaintiff’s factual

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allegations are broad and vague. Plaintiff does not allege how any of the individual defendants’

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personal conduct violated his constitutional rights. Plaintiff simply lists off each defendant by

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name and proceeds to broadly allege that they deprived him of adequate medical treatment

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without explaining each individual’s specific role in the alleged wrong. Plaintiff does mention

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that defendant Forountan refused plaintiff’s requests to provide him with “declot” treatment. See

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ECF No. 26, pg. 7. While such an allegation is the sort of causal connection which may bring

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about a cognizable claim, it by itself, does not pass § 1983 muster, as will be discussed in the

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analysis of plaintiff’s 8th Amendment claim.

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B.

Supervisor Liability
As with plaintiff’s original complaint, the Court observes multiple defendants

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named in the complaint hold supervisory positions. Supervisory personnel are generally not liable

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under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989) (holding that there is no respondeat superior liability under § 1983). A supervisor is only

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liable for the constitutional violations of subordinates if the supervisor participated in or directed

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the violations. See id. The Supreme Court has rejected the notion that a supervisory defendant

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can be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct

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because government officials, regardless of their title, can only be held liable under § 1983 for his

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or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676

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(2009). Supervisory personnel who implement a policy so deficient that the policy itself is a

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repudiation of constitutional rights and the moving force behind a constitutional violation may,

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however, be liable even where such personnel do not overtly participate in the offensive act. See

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Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in

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civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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Here, plaintiff appears to allege some of the defendants are liable as supervisory

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personnel—asserting that as supervisors, these defendants are liable for the conduct of their

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subordinates. This is a respondeat superior theory of liability, which is not cognizable under §

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1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff is advised that in

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amending the complaint, he should be cognizant of the legal standard related to supervisory

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liability, outlined above, and note that a supervisor can only be held liable for their own actions or

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inactions resulting in the violation of plaintiff’s constitutional rights, not the actions or inactions
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of their subordinates.
C.

8th Amendment – Deliberate Indifference
The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

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two requirements are met: (1) objectively, the official’s act or omission must be so serious such

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that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

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see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health

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needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by

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Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to

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treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and

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wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled

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on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see

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also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness

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are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)

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whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the

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condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,
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1131-32 (9th Cir. 2000) (en banc).
The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference. See

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Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

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that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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Here, plaintiff has not alleged sufficient facts to establish an 8th Amendment

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violation. Plaintiff did not allege facts supporting an allegation that any defendant acted

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unnecessarily and wantonly for the purpose of inflicting harm on plaintiff. Plaintiff does mention

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that defendant Forountan refused plaintiff’s requests to provide him with “declot” treatment. See

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ECF No. 26, pg. 7. However, there is no further explanation as to the context of this denial.

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Plaintiff does not state why Forountan denied him treatment and does not allege that Forountan

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withheld “declot” treatment in order to inflict harm on the plaintiff. If such a claim was made, it is

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nowhere clear in the complaint.

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Additionally, it appears plaintiff’s claim is, at least in part, based on a theory of

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negligence. Because negligence in treating a medical condition does not give rise to an 8th

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Amendment violation, any allegations related to alleged negligence fail to state a claim under §

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1983. See Estelle, 429 U.S. at 106. Because plaintiff has failed to allege sufficient facts to
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establish an 8th Amendment claim, failed to link any defendant to any alleged misconduct, and

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rooted his allegations in a theory of negligent medical treatment, plaintiff’s 8th Amendment claim

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cannot pass screening.

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Plaintiff will be granted leave to amend his complaint. He is advised to avoid using

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vague and conclusory language of “deliberate indifference” to establish a claim. Specific factual

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allegations of each defendant’s individual misconduct are required to establish a § 1983 claim.

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D.

1st Amendment – Retaliation
In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

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action was not related to a legitimate penological purpose, such as preserving institutional

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security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

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this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

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exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

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Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

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show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

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the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also

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Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

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establish the following in order to state a claim for retaliation: (1) prison officials took adverse

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action against the inmate; (2) the adverse action was taken because the inmate engaged in

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protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

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adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

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alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

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that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

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example, the court cited Pratt in which a retaliation claim had been decided without discussing

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chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

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discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

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penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly
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stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

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action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

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Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

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which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

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chilling effect element is essentially subsumed by adverse action.

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Here, plaintiff claims that defendants: Segriddy, Carman, Stacy, Denise, Irene,

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Kent, Jamie, Foroutan, Min, Alex, Frank, and Butts conspired to place plaintiff in a hepatitis B

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isolation room for commencing grievance procedures against them, as well as reporting the

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murder of a patient. See ECF No. 26, pgs. 12-13. As alleged, plaintiff properly claims he was

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engaged in protected conduct, reporting both a murder and the misconduct of his medical care

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professionals. Also, it seems clear defendants’ actions, if adverse, would have a chilling effect on

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the plaintiff. However, plaintiff has not alleged sufficient facts to establish a retaliation claim

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under the 1st Amendment.

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First, plaintiff does not provide any context for the alleged adverse action. It is not

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clear what plaintiff means by the allegation that defendants “conspired” to place plaintiff in a

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hepatitis B isolation room. See ECF No. 26, pg.12. There is no mention as to what any individual

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defendant actually did to place the plaintiff in the room. Second, there is not factual context for

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which placing defendant in isolation could be seen as “adverse.” Plaintiff does not state that he

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did not require isolation, nor that the isolation was a pretext for some other nefarious purpose.

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Third, plaintiff states no facts alleging that this action, if adverse, failed to serve some penological

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purpose. Therefore, plaintiff has failed to state a claim under the 1st Amendment.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s first amended complaint is dismissed with leave to amend; and

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Plaintiff shall file a second amended complaint within 30 days of the date

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of service of this order.

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Dated: October 1, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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