Thornberry v. Kernan et al

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 05/24/17 ordering plaintiff's complaint 1 is dismissed with leave to amend. Plaintiff's motion for injunctive relief 2 is denied. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LEE THORNBERRY, Plaintiff, 12 13 14 15 16 17 No. 2:17-CV-0953-CMK-P vs. ORDER SCOTT KERNAN, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. 19 § 636(c) and no other party has been served or appeared in the action. Pending before the court 20 are plaintiff’s complaint (Doc. 1) and plaintiff’s motion for injunctive relief (Doc. 2). 21 The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 24 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 25 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 26 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 1 1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 3 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are 4 satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds 5 upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff 6 must allege with at least some degree of particularity overt acts by specific defendants which 7 support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it 8 is impossible for the court to conduct the screening required by law when the allegations are 9 vague and conclusory. 10 11 I. PLAINTIFF’S ALLEGATIONS 12 Plaintiff names as defendants Scott Kernan, J. Bal, David Baugham, Michael 13 Felder, M. Bobbala, and C. Smith, all of whom are supervisory prison officials. Plaintiff also 14 names James Chau, a prison primary care physician. Plaintiff claims that, prior to any 15 examination, defendant Chau discontinued plaintiff’s prescribed pain medication and instead 16 prescribed a “replacement” which plaintiff characterizes as “substantially ineffective.” Plaintiff 17 further alleges that, nearly a month later and only after he had filed a medical grievance, he was 18 actually examined by defendant Chau, who continued the replacement prescription. According 19 to plaintiff, defendant Chau informed plaintiff: “I give you constitutional care. I’m not here to 20 make you comfortable. I only have to make you functional.” In plaintiff’s companion motion 21 for injunctive relief, plaintiff seeks an order enjoining discontinuation of plaintiff’s originally 22 prescribed pain medication. 23 /// 24 /// 25 /// 26 /// 2 1 2 3 II. DISCUSSION A. Plaintiff’s Complaint The treatment a prisoner receives in prison and the conditions under which the 4 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 5 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 6 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 7 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 8 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 9 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 10 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 11 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 12 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 13 such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 14 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 15 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 16 official must have a “sufficiently culpable mind.” See id. 17 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 18 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 19 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 20 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 21 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 22 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 23 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 24 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the 25 condition is worthy of comment; (2) whether the condition significantly impacts the prisoner’s 26 daily activities; and (3) whether the condition is chronic and accompanied by substantial pain. 3 1 See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 2 The requirement of deliberate indifference is less stringent in medical needs cases 3 than in other Eighth Amendment contexts because the responsibility to provide inmates with 4 medical care does not generally conflict with competing penological concerns. See McGuckin, 5 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 6 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 7 1989). The complete denial of medical attention may constitute deliberate indifference. See 8 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 9 treatment, or interference with medical treatment, may also constitute deliberate indifference. 10 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 11 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 12 Negligence in diagnosing or treating a medical condition does not, however, give 13 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 14 difference of opinion between the prisoner and medical providers concerning the appropriate 15 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 16 90 F.3d 330, 332 (9th Cir. 1996). In this case, plaintiff alleges that defendant Chau discontinued his prescribed pain 17 18 medication without any examination and instead prescribed a replacement medication. He 19 further alleges that he was examined by defendant Chau about one month later and that, 20 following that examination, the replacement medication was continued. To the extent plaintiff’s 21 claims relate to continuation of the replacement medication after being examined by defendant 22 Chau, the court finds that plaintiff’s claims amount to a difference in medical opinion as to the 23 appropriate medication. 24 /// 25 /// 26 /// 4 1 To the extent, however, plaintiff’s claims relate to the order to discontinue 2 plaintiff’s initial medication and prescribe a replacement medication before any examination, 3 plaintiff may be able to state a claim but currently fails to do so. If the discontinuation of 4 plaintiff’s initial medication was the result of some kind of prison-wide policy the defendants 5 may be liable. See Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en 6 banc). Plaintiff, however, does not specifically allege the existence of such a policy. Plaintiff 7 will be provided an opportunity to amend to clarify the nature of his claim and provide further 8 specific factual allegations. 9 10 B. Plaintiff’s Motion for Injunctive Relief The legal principles applicable to requests for injunctive relief, such as a 11 temporary restraining order or preliminary injunction, are well established. To prevail, the 12 moving party must show that irreparable injury is likely in the absence of an injunction. See 13 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 14 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a 15 lesser standard by focusing solely on the possibility of irreparable harm, such cases are “no 16 longer controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 17 1046, 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he 18 is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 19 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 20 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). 21 In this case, plaintiff cannot at this time establish that he is likely to succeed on 22 the merits. As discussed above, plaintiff’s claims are not cognizable to the extent they relate to 23 the continuation of replacement medication after plaintiff was examined by defendant Chau. To 24 the extent plaintiff’s claims relate to the discontinuation of his initial medication before any 25 examination, plaintiff fails to allege sufficient facts to show an actionable policy. Because 26 plaintiff has not demonstrated that he is likely to succeed on the merits, injunctive relief is not 5 1 appropriate. 2 3 III. CONCLUSION 4 Because it is possible that the deficiencies identified in this order may be cured by 5 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire 6 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 7 informed that, as a general rule, an amended complaint supersedes the original complaint. See 8 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 9 amend, all claims alleged in the original complaint which are not alleged in the amended 10 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 11 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 12 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 13 complete in itself without reference to any prior pleading. See id. 14 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 15 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 16 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 17 each named defendant is involved, and must set forth some affirmative link or connection 18 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 19 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Finally, plaintiff is warned that failure to file an amended complaint within the 20 21 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 22 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to 23 comply with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 24 41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 25 /// 26 /// 6 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s complaint (Doc. 1) is dismissed with leave to amend; 3 2. Plaintiff’s motion for injunctive relief (Doc. 2) is denied; and 4 3. Plaintiff shall file a amended complaint within 30 days of the date of 5 service of this order. 6 7 8 9 DATED: May 24, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7

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