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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE THORNBERRY,
Plaintiff,

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No. 2:17-CV-0953-CMK-P

vs.

ORDER

SCOTT KERNAN, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action. Pending before the court

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are plaintiff’s complaint (Doc. 1) and plaintiff’s motion for injunctive relief (Doc. 2).

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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).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

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satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

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

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must allege with at least some degree of particularity overt acts by specific defendants which

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

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

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vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff names as defendants Scott Kernan, J. Bal, David Baugham, Michael

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Felder, M. Bobbala, and C. Smith, all of whom are supervisory prison officials. Plaintiff also

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names James Chau, a prison primary care physician. Plaintiff claims that, prior to any

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examination, defendant Chau discontinued plaintiff’s prescribed pain medication and instead

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prescribed a “replacement” which plaintiff characterizes as “substantially ineffective.” Plaintiff

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further alleges that, nearly a month later and only after he had filed a medical grievance, he was

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actually examined by defendant Chau, who continued the replacement prescription. According

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to plaintiff, defendant Chau informed plaintiff: “I give you constitutional care. I’m not here to

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make you comfortable. I only have to make you functional.” In plaintiff’s companion motion

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for injunctive relief, plaintiff seeks an order enjoining discontinuation of plaintiff’s originally

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prescribed pain medication.

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II. DISCUSSION
A.

Plaintiff’s Complaint
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

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

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such 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

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

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the

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condition is worthy of comment; (2) whether the condition significantly impacts the prisoner’s

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daily activities; and (3) whether the condition is chronic and accompanied by substantial pain.
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See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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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.

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

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demonstrate 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).
In this case, plaintiff alleges that defendant Chau discontinued his prescribed pain

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medication without any examination and instead prescribed a replacement medication. He

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further alleges that he was examined by defendant Chau about one month later and that,

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following that examination, the replacement medication was continued. To the extent plaintiff’s

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claims relate to continuation of the replacement medication after being examined by defendant

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Chau, the court finds that plaintiff’s claims amount to a difference in medical opinion as to the

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appropriate medication.

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To the extent, however, plaintiff’s claims relate to the order to discontinue

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plaintiff’s initial medication and prescribe a replacement medication before any examination,

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plaintiff may be able to state a claim but currently fails to do so. If the discontinuation of

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plaintiff’s initial medication was the result of some kind of prison-wide policy the defendants

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

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banc). Plaintiff, however, does not specifically allege the existence of such a policy. Plaintiff

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will be provided an opportunity to amend to clarify the nature of his claim and provide further

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specific factual allegations.

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B.

Plaintiff’s Motion for Injunctive Relief
The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a

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lesser standard by focusing solely on the possibility of irreparable harm, such cases are “no

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longer controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

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1046, 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he

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is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

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In this case, plaintiff cannot at this time establish that he is likely to succeed on

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the merits. As discussed above, plaintiff’s claims are not cognizable to the extent they relate to

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the continuation of replacement medication after plaintiff was examined by defendant Chau. To

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the extent plaintiff’s claims relate to the discontinuation of his initial medication before any

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examination, plaintiff fails to allege sufficient facts to show an actionable policy. Because

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plaintiff has not demonstrated that he is likely to succeed on the merits, injunctive relief is not
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appropriate.

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III. CONCLUSION

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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).
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

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comply with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule

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41(b). 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 complaint (Doc. 1) is dismissed with leave to amend;

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Plaintiff’s motion for injunctive relief (Doc. 2) is denied; and

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3.

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

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service of this order.

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DATED: May 24, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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