Ayala v. Salazar et al

Filing 11

ORDER signed by Magistrate Judge Deborah Barnes on 11/26/2018 DISMISSING 9 Amended Prisoner Civil Rights Complaint with leave to amend for failure to state a claim. Plaintiff is granted 30 days from the date of this order to file an amended complaint. Failure to comply with this order will result in a recommendation that this action be dismissed. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMUNDO JIMENEZ-AYALA,

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Plaintiff,

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No. 2:17-cv-1150 DB P

v.

ORDER

J. SALAZAR, et al.,

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Defendants.

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Plaintiff is a federal prisoner proceeding pro se in a civil rights action pursuant to Bivens

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vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff alleges defendants failed to provide him

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with adequate medical treatment in violation of the Eighth Amendment. Presently before the

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court is plaintiff’s amended complaint (ECF No. 9) for screening. For the reasons set forth below

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the court will dismiss the complaint and grant plaintiff one final opportunity to amend.
SCREENING

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I.

Legal Standards

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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 an 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 the prisoner has raised claims

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

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

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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 Franklin, 745 F.2d at 1227.

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at

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389. The statute requires that there be an actual connection or link between the

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

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

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

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

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

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

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

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

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

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

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Mosher v. Saalfeld, 589 F.2d 438, 441 (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).
II.

Background

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The court previously screened and dismissed plaintiff’s original complaint for failure to

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state a claim. (ECF No. 7.) In the screening order, plaintiff was given the standards for stating

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claims for violations of his right to Equal Protection and his right to adequate medical care under

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the Eighth Amendment. (Id. at 4-5.) Plaintiff was also informed that in an amended complaint he

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must state specific facts showing how each named defendant violated his rights. (Id. at 4.)

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Plaintiff was instructed that the amended complaint should cure the deficiencies of the original

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complaint and that failure to comply may result in a recommendation that this action be

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dismissed.

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III.

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Allegations in the Amended Complaint
Plaintiff claims events giving rise to the allegations occurred while he was incarcerated at

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the Federal Correctional Institute in Herlong, California (“FCI-Herlong”). Plaintiff names as

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defendants: (1) Physical Assistant Tabor, (2) Dr. Allred; (3) Warden Salazar; and (4) “delegated

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staff, and the chain of command.”

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Petitioner states that on October 27, 2016, he injured his left knee while working in the

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facility’s general maintenance shop. (ECF No. 9 at 3.) He claims he was not seen by a doctor

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until October 31, 2016. He alleges that when he was seen by a doctor it was recommended he

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take two days off of work and given cool compresses. He claims eventually an X-ray revealed he
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had fractured his knee and needed surgery. He further alleges that the prison medical health

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service declined to provide plaintiff with the required surgery.

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IV.

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Does Plaintiff State a Cognizable Claim?
A. Legal Standards under the Eighth Amendment

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

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

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

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

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

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

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by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.
If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner

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

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

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

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

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

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

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

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

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

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

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

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825, 834 (1994).

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

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prisoner officials responded to the serious medical need with deliberate indifference. See Id. In

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general, deliberate indifference may be shown when prison officials deny, delay, or intentionally

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interfere with medical treatment, or may be shown by the way in which prison officials provide

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medical care. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

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

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

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

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

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

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

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

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

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the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).

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

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

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

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

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

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

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

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

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

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

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

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give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662

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F.2d 1337, 1344 (9th Cir. 1981).

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B. Legal Standards under the Equal Protection Clause
The Equal Protection Clause requires persons who are similarly situated to be treated
alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Shakur v.
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Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by

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showing prison officials intentionally discriminated against a plaintiff based on his membership

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in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690,

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702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of

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L.A., 250 F.3d 668, 686 (9th Cir. 2001), or similarly situated individuals were intentionally

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treated differently without a rational relationship to a legitimate state purpose, Engquist v. Or.

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Dep’t of Agric., 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008).

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C. Analysis
Here, plaintiff claims he was not given adequate medical treatment following his injury.

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However, he has not stated any facts connecting this deprivation to any actions by the named

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defendants. In order to state a claim for relief under § 1983, plaintiff must link each named

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defendant with some affirmative action or omission that demonstrates a violation of plaintiff’s

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federal rights. Plaintiff must clearly state which defendants he feels are responsible for each

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violation of his constitutional rights and their factual basis as his complaint must put each

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defendant on notice of plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d

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1167, 1171 (9th Cir. 2004).

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Under section 1983, a plaintiff bringing an individual capacity claim must demonstrate

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that each defendant personally participated in the deprivation of his rights. See Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between

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

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 695 (1978).

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Government officials may not be held liable for the action of their subordinates under a

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theory of respondeat superior. Id. at 691. Since a government official cannot be held liable under

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a theory of vicarious liability in §1983 actions, plaintiff must plead sufficient facts showing that

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the official has violated the Constitution through his own individual actions by linking each

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named defendant with some affirmative act or omission that demonstrates a violation of

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plaintiff’s federal rights. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
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Liability may be imposed on supervisory defendants under § 1983 only if the supervisor:

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(1) personally participated in the deprivation of constitutional rights or directed the violations or

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(2) knew of the violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646

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(9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A defendant cannot be held

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liable for being generally deficient in their supervisory duties.

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Plaintiff has not stated a cognizable claim because he has failed to establish a link between

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the alleged constitutional violation and any named defendant. The court will grant plaintiff one

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final opportunity to amend the complaint. Failure to cure the deficiencies identified will result in

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a recommendation that this action be dismissed without leave to amend. See Zucco Partners,

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LLC v. Digimarc Corp., 552 F.3d 981, 988, 1007 (9th Cir. 2009) (upholding dismissal of

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complaint with prejudice when there were also “three iterations of [the] allegations—none of

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which, according to [the district] court, was sufficient to survive a motion to dismiss”) (internal

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quotation marks omitted).

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V.

Amending the Complaint
As stated above, the complaint must be dismissed because it fails to state a claim. The

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court will provide plaintiff with one final opportunity to cure the deficiencies. If plaintiff chooses

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to file an amended complaint, he must allege facts demonstrating that the defendants’ conduct

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violated the Eighth Amendment standards set forth in this order.

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Plaintiff is advised that in an amended complaint he must clearly identify each defendant

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

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

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

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

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

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

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

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Any amended complaint must show the federal court has jurisdiction, the action is brought
in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must
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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s first amended complaint (ECF No. 9) is dismissed with leave to amend for
failure to state a claim.

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

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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

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docket number assigned to this case and must be labeled “First Amended Complaint.”

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3. Failure to comply with this order will result in a recommendation that this action be
dismissed.
Dated: November 26, 2018

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