Jones v. California Correctional Healthcare Services et al

Filing 25

ORDER signed by Magistrate Judge Deborah Barnes on 11/13/18 DISMISSING 21 Amended Prisoner Civil Rights Complaint with leave to amend. Plaintiff is GRANTED 30 days after being served with this order to file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Coll, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GARLAND A. JONES,

12

Plaintiff,

13
14
15

No. 2:17-cv-0738 WBS DB P

v.

ORDER

CALIFORNIA CORRECTIONAL
HEALTH CARE SERVICES, et al.,
Defendants.

16
17
18

Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

19

1983. Plaintiff alleges defendants violated his rights by failing to provide proper medical care

20

and was retaliated against for filing appeals. Before the court is plaintiff’s first amended

21

complaint for screening. (ECF No. 21.) For the reasons set forth below, the court will dismiss

22

plaintiff’s amended complaint and give plaintiff an opportunity to file an amended complaint.
SCREENING

23
24

I.

Legal Standards

25

The court is required to screen complaints brought by prisoners seeking relief against a

26

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

27

1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

28

that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
1

1

granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

2

U.S.C. § 1915A(b)(1) & (2).

3

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

4

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

5

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

6

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

7

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

8

pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

9

Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

10

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

11

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

12

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

13

However, in order to survive dismissal for failure to state a claim a complaint must contain more

14

than “a formulaic recitation of the elements of a cause of action;” it must contain factual

15

allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

16

U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

17

allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

18

738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

19

doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

20

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

21
22
23

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.

24

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

25

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

26

Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

27

(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

28

meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
2

1

omits to perform an act which he is legally required to do that causes the deprivation of which

2

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

3

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

4

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

5

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

6

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

7

Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

8

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

9

Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

10

II.

Allegations in the Amended Complaint

11

In the amended complaint plaintiff identifies as defendants: (1) Chief Medical Officer; (2)

12

M.D. Singh; (3) J. Lewis; (4) Director Level Appeal Person; (5) Chief Medical Executive R.

13

Mitchell (6) Chief Physician and Surgeon C. Smith; and (7) M.D. K. Took. (ECF No. 1 at 1-3.)

14

Plaintiff states defendants violated his right to adequate medical care under the Eighth

15

Amendment, harmed his safety, and retaliated against him for filing appeals. Plaintiff requests

16

monetary relief and that his medical needs be met.

17

III.

Legal Standards under the Eighth Amendment

18

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

19

Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

20

punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

21

Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

22

Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

23

and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

24

by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

25

If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner

26

must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference

27

to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has

28

two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s
3

1

response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

2

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

3

A medical need is serious “if the failure to treat the prisoner’s condition could result in

4

further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

5

F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

6

“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

7

at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

8

objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

9

825, 834 (1994).

10

If a prisoner establishes the existence of a serious medical need, he must then show that

11

prisoner officials responded to the serious medical need with deliberate indifference. See Farmer,

12

511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny,

13

delay, or intentionally interfere with medical treatment, or may be shown by the way in which

14

prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th

15

Cir. 1988).

16

Before it can be said that a prisoner’s civil rights have been abridged with regard to medical

17

care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

18

‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

19

Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

20

Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

21

diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

22

Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

23

mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

24

the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835.

25

Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at

26

104-05. To establish a claim of deliberate indifference arising from delay in providing care, a

27

plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

28

Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;
4

1

Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198,

2

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

3

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

4

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

5

his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

6

Finally, mere differences of opinion between a prisoner and prison medical staff or between

7

medical professionals as to the proper course of treatment for a medical condition do not give rise

8

to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th

9

Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d

10
11

1337, 1344 (9th Cir. 1981).
IV.

Legal Standards for Retaliation in Violation of the First Amendment
Allegations of retaliation against a prisoner’s First Amendment rights may support a §

12
13

1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). “Prisoners have a First

14

Amendment right to file grievances against prison officials and to be free from retaliation for

15

doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584

16

F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the right to pursue

17

civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d 1090,

18

1104 (9th Cir. 2011) overruled on other grounds as stated in Richey v. Dahne, 807 F.3d 1202,

19

1209 n.6 (9th Cir. 2015). “Within the prison context, a viable claim of retaliation entails five

20

basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

21

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

22

exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

23

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

24

V.

Failure to State a Claim

25

The court screened and dismissed plaintiff’s original complaint because the entities he named

26

as defendants are immune from suit under the Eleventh Amendment. (ECF No. 18 at 4.) In his

27

amended complaint plaintiff has identified defendants who may be liable for the alleged

28

violations, but he has failed to allege facts showing what specific actions each named defendant
5

1

took that violated his rights. Plaintiff claims he was denied medical care, but does not state what

2

care he requested or specify which defendant refused to provide medical care. While plaintiff

3

states he was threatened by Bertollozzi about filing appeals, Bertollozzi is not named as a

4

defendant in this action.

5

The Civil Rights Act (42 U.S.C. § 1983) requires that there be an actual connection or link

6

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

7

See Monell v. Dept. of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

8

(1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a

9

constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

10

in another’s affirmative acts or omits to perform an act which he is legally required to do that

11

causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

12

Cir. 1978). To state a claim for relief under § 1983, plaintiff must link each named defendant

13

with some affirmative act or omission that demonstrates a violation of plaintiff’s federal rights.

14

Plaintiff must clearly identify which defendants he feels are responsible for each violation of

15

his constitutional rights and the factual basis. His complaint must put each defendant on notice of

16

plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

17

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972),

18

conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of

19

the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even a liberal interpretation of a civil

20

rights complaint may not support essential elements of the claim that were not initially pled. Id.

21
22
23
24
25
26

Accordingly, plaintiff’s claim will be dismissed with leave to amend because he has failed to
state facts showing how each defendant violated his rights.
AMENDING THE COMPLAINT
As set out above, plaintiff’s amended complaint fails to state a cognizable claim and he will
be given the opportunity to amend the complaint.
Plaintiff is advised that in an amended complaint he must clearly identify each defendant

27

and the action that defendant took that violated his constitutional rights. The court is not required

28

to review exhibits to determine what plaintiff’s charging allegations are as to each named
6

1

defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The

2

charging allegations must be set forth in the amended complaint so defendants have fair notice of

3

the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in

4

support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See

5

Fed. R. Civ. P. 8(a).

6

Any amended complaint must show the federal court has jurisdiction, the action is brought

7

in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

8

contain a request for particular relief. Plaintiff must identify as a defendant only persons who

9

personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

10

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

11

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

12

he is legally required to do that causes the alleged deprivation).

13

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

14

R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

15

R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

16

occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

17

The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

18

1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

19

heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

20

84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

21

set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

22

N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

23

which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

24

An amended complaint must be complete in itself without reference to any prior pleading.

25

E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.

26

By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

27

has evidentiary support for his allegations, and for violation of this rule the court may impose

28

sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
7

1

CONCLUSION

2

For the foregoing reasons, IT IS HEREBY ORDERED that:

3

1. Plaintiff’s first amended complaint is dismissed with leave to amend.

4

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

5

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

6

of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear

7

the docket number assigned this case and must be labeled “Second Amended Complaint.”

8
9
10

3. Failure to comply with this order may result in a recommendation that this action be
dismissed.
4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form

11

used in this district.

12

Dated: November 13, 2018

13
14
15
16
17
18

DLB:12
DLB:1/prisoner-civil rights/jone0738.scrn2

19
20
21
22
23
24
25
26
27
28
8