Marshall v. Unknown
Filing
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ORDER signed by Magistrate Judge Allison Claire on 9/7/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days after service of this order. Plaintiff to pay statutory filing fee of $350. All fees to be collected and paid in accordance with this court's order to the Director of the CDCR filed concurrently herewith. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MAEWEATHERS MARSHALL,
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No. 2:17-cv-1650 AC P
Plaintiff,
v.
ORDER
UNKNOWN,
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Defendant.
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I.
Introduction
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Plaintiff is a state prisoner incarcerated at California State Prison Sacramento (CSP-SAC),
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under the authority of the California Department of Corrections and Rehabilitation (CDCR).
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Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and a
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request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons that
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follow, plaintiff’s request to proceed in forma pauperis is granted, and his complaint is dismissed
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with leave to file a First Amended Complaint.
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II.
In Forma Pauperis Application
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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
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1915(a). Accordingly, plaintiff’s request to proceed in forma pauperis, ECF No. 2, will be
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granted.
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Plaintiff is still required to pay the statutory filing fee of $350.00 for this action. See 28
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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee
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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will
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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly
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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust
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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court
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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28
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U.S.C. § 1915(b)(2).
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III.
Screening of Complaint Pursuant to 28 U.S.C. § 1915A
A. Legal Standards for Screening a Prisoner Civil Rights Complaint
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,” fail to state a claim upon which relief may be granted, or seek monetary
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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 dismiss a claim as frivolous when it is based on an indisputably
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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
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327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an
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arguable legal and factual basis.
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A district court must construe a pro se pleading liberally to determine if it states a
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potentially cognizable claim. However, the court’s liberal interpretation of a pro se complaint
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may not supply essential elements of the claim that were not pled. Ivey v. Board of Regents, 673
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F.2d 266, 268 (9th Cir. 1982). While detailed factual allegations are not required, “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not
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suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corporation v.
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Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 570). “While legal conclusions can provide the framework of a complaint,
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they must be supported by factual allegations.” Id. at 679. Rule 8 of the Federal Rules of Civil
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Procedure “requires only a short and plain statement of the claim showing that the pleader is
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entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds
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upon which it rests.” Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation
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marks omitted).
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A pro se litigant is entitled to notice of the deficiencies in the complaint and an
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opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See
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Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448
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(9th Cir. 1987).
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B. Plaintiff’s Allegations
As set forth in his complaint, plaintiff alleges that he suffered a back injury in July 2016
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for which he received treatment but continues to experience pain symptoms. On February 22,
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2017, plaintiff sought treatment for his back injury and a shoulder injury from CSP-SAC
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physician “John Doe.” The physician refused to prescribe pain medication prior to plaintiff
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receiving an MRI, asserting that this was protocol, and scheduled an MRI within approximately
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six weeks. On March 9, 2017, plaintiff saw Dr. Hopkins, who cancelled the MRI as not
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medically necessary and scheduled plaintiff for physical therapy. On June 7, 2017, plaintiff was
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seen by Dr. Arya, who rescheduled the MRI and prescribed plaintiff Tylenol 3 (with codeine),
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opining that both matters were medically warranted.
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Plaintiff contends that Dr. “John Doe” was deliberately indifferent to plaintiff’s serious
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medical needs because he refused to prescribe pain medication for plaintiff before plaintiff
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obtained an MRI. Plaintiff explains, “by Dr. Arya prescribing me Tylenol 3 ‘before’ the MRI
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show[s] that the doctor I’d seen on 2/22/17 had been deliberately indifferent towards my medical
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needs because Dr. Arya had seen the same CatScan images of my back . . . that the doctor on
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2/22/17 had seen and he refused to prescribe me medication!” ECF No. 1 at 3-4. Plaintiff does
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not allege that Dr. Hopkins was deliberately indifferent.
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C. Analysis
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A difference of medical opinion does not demonstrate deliberate indifference to a
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prisoner’s serious medical needs. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
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Therefore, plaintiff’s allegations fail to state a cognizable deliberate indifference claim against the
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unidentified physician who treated plaintiff on February 22, 2017. Because this is the only claim
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asserted in the complaint, the complaint must be dismissed. However, as explained below,
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plaintiff will be accorded the opportunity to file an amended complaint.
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Plaintiff’s failure to identify the physician who treated him on February 22, 2017 provides
an independent ground for dismissing the complaint. “Doe” defendants are disfavored and, as a
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general rule, are dismissed without prejudice from an action until their identity can be
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ascertained. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v.
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Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Brass v. County of Los Angeles, 328 F.3d 1192,
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1195-98 (9th Cir. 2003). Plaintiff must attempt to obtain the identity of the subject physician and
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name him as the defendant in the amended complaint.
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Plaintiff is informed of the following requirements for stating a cognizable Eighth
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Amendment claim for deliberate indifference to his serious medical needs. “In the Ninth Circuit,
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the test for deliberate indifference consists of two parts. First, the plaintiff must show a serious
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medical need by demonstrating that failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must
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show the defendant’s response to the need was deliberately indifferent. This second prong ... is
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satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th
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Cir. 2006) (internal citations, punctuation and quotation marks omitted); accord, Wilhelm v.
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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Lemire v. CDCR, 726 F.3d 1062, 1081 (9th Cir.
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2013). A prisoner must allege facts supporting a reasonable inference that the prison official
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“kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must both
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be aware of the facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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However, as earlier noted, these requirements must be considered within the bounds of reasonable
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differences in medical opinions. Sanchez, 891 F.2d at 242.
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IV.
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Subject to the legal standards set forth herein, plaintiff may file a proposed First Amended
Leave to File a First Amended Complaint
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Complaint (FAC) within thirty days after service of this order. The FAC must be on the form
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provided herewith, labeled “First Amended Complaint,” and provide the case number assigned
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this case. An amended complaint must be complete in itself without reference to any prior
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pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff
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files an amended complaint, the original pleading is superseded. The FAC will be screened by
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the court pursuant to 28 U.S.C. § 1915A.
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Failure to timely file a FAC will result in the dismissal of this action without prejudice.
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V.
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You have been granted in forma pauperis status to proceed in this action; you will pay the
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Summary
filing fee over time with deductions from your prison trust account.
The court has screened your complaint and found that your allegations, as currently
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framed, fail to state a cognizable claim for deliberate indifference to your serious medical needs.
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You have been granted leave to file a First Amended Complaint within thirty days, and the court
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has provided you guidance in stating a cognizable claim.
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VI.
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For the foregoing reasons, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
Conclusion
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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3. Plaintiff’s complaint, ECF No. 1, is dismissed with leave to file a proposed First
Amended Complaint within thirty (30) days after service of this order, subject to the legal
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standards set forth herein. Failure to timely file a First Amended Complaint will result in the
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dismissal of this action without prejudice.
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4. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a
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copy of the form complaint used by prisoners in this district to pursue a civil rights action under
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42 U.S.C. § 1983.
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IT IS SO ORDERED.
DATED: September 7, 2017
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