Barker v. Osemwingie et al

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/27/17 ordering plaintiff's complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BARKER,

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No. 2:16-cv-3008 CKD P

Plaintiff,
v.

ORDER

OSEMWINGIE, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. Plaintiff has paid the filing fee. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1).

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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 where 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); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff claims that two nurse assistants at California Health Care Facility were seriously

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indifferent to his serious medical needs in violation of the Eighth Amendment. In one alleged

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incident, defendants moved plaintiff using a lift device. The move caused plaintiff pain due to his

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preexisting back problems and a bullet lodged in his pelvic region. In the second incident, a

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defendant left plaintiff sitting on the toilet for twenty minutes. (ECF No. 1.)

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Denial or delay of medical care for a prisoner’s serious medical needs may constitute a

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violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

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97, 104-05 (1976). An individual is liable for such a violation only when the individual is

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deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).

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In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439
F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other
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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the

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plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton infliction of

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pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d

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at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.

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Second, the plaintiff must show the defendant’s response to the need was deliberately

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indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act

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or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

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indifference. Id. Under this standard, the prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but that person

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“must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

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approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A

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showing of merely negligent medical care is not enough to establish a constitutional violation.

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Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106.

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A difference of opinion about the proper course of treatment is not deliberate indifference,

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nor does a dispute between a prisoner and prison officials over the necessity for or extent of

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medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d

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

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Having reviewed the complaint and attachments in light of the above standard, the

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undersigned concludes that plaintiff does not state an Eighth Amendment claim against either

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defendant. At most, he alleges negligence by prison medical staff. For these reasons, the

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complaint will be dismissed. However, plaintiff will have the opportunity to file an amended

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complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in

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specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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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 is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed; and

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2. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in dismissal of this action.

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Dated: January 27, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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