Tenore v. Horowitz et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 9/5/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend. Within 30 days from the date of this order, plaintiff to complete and submit the Notice of Ame ndment with an original and one copy of the Amended Complaint. Plaintiff to pay the statutory filing fee of $350. All fees to be collected and paid in accordance with this court's order to the CDCR filed concurrently herewith. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL TENORE, 12 13 No. 2:17-cv-1802 KJN P Plaintiff, v. ORDER 14 EVALYN HOROWITZ, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 22 23 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 27 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 28 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 2 1 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 2 In reviewing a complaint under this standard, the court must accept as true the allegations of the 3 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 4 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 5 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 III. Plaintiff’s Complaint 7 Plaintiff alleges that defendants knew or should have known how quickly esophageal 8 dysplasia can develop into adenocarcinoma. Plaintiff alleges that Mule Creek State Prison 9 doctors took five months from January 29, 2015, when the first esophagogastroduodenoscopy 10 (EGD) was performed and revealed dysplasia, waiting until June 30, 2015, to perform the second 11 EGD, which revealed adenocarcinoma (cancer), and then waited another three months, until 12 October 22, 2015, to perform surgery. Plaintiff contends that following the first EGD, the doctor 13 ordered that plaintiff follow up with his primary care physician to check the biopsy for dysplasia, 14 and if dysplasia was present, to refer plaintiff to the hospital to perform a thermal ablation for low 15 grade dysplasia with HALO system. Plaintiff contends that if the second EGD had been timely 16 performed, he could have been spared the esophagectomy and stomach transposition that was 17 required due to the delay. Plaintiff names as defendants two primary care physicians: Dr. 18 Horowitz and Dr. Soltanian-Zadeh; plus Dr. Bal, Chief Medical Executive; Dr. Christopher 19 Smith, Chief Physician and Surgeon; and J. Lewis, Deputy Director, Policy and Risk 20 Management Services, California Correctional Health Care Services (“CCHCS”), Appeal Branch. 21 IV. Eighth Amendment Standards 22 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 23 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 24 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 25 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 26 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 27 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 28 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 3 1 What is needed to show unnecessary and wanton infliction of pain “varies according to 2 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) 3 (citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment, 4 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious 5 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or 6 causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 7 If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner 8 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference 9 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has 10 two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s 11 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 12 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 13 A medical need is serious “if the failure to treat the prisoner’s condition could result in 14 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 15 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 16 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. 17 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 18 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 19 825, 834 (1994). 20 If a prisoner establishes the existence of a serious medical need, he must then show that 21 prison officials responded to the serious medical need with deliberate indifference. See Farmer, 22 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 23 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 24 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 25 Cir. 1988). 26 Before it can be said that a prisoner’s civil rights have been abridged with regard to 27 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 28 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 4 1 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 2 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 3 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 4 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 5 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 6 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. 7 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 8 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 9 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 10 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 11 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 12 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 13 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 14 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to 15 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). In appropriate cases, however, a 16 prisoner may state a claim of deliberate indifference to medical needs based on a difference of 17 medical opinion. To do so, the prisoner must show that “the course of treatment the doctors 18 chose was medically unacceptable under the circumstances,” and that they “chose this course in 19 conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson, 90 F.3d at 332 20 (citations omitted). 21 Finally, mere differences of opinion between a prisoner and prison medical staff or 22 between medical professionals as to the proper course of treatment for a medical condition do not 23 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 24 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 25 F.2d 1337, 1344 (9th Cir. 1981). 26 V. Discussion 27 28 Plaintiff has suffered a very painful and no doubt traumatic esophagectomy and stomach transposition. Thus, he has identified a very serious medical need, and articulately set forth the 5 1 reasons why he believes the delay was unreasonable and deliberately indifferent in light of the 2 outside doctor’s orders following the first EGD. However, plaintiff fails to set forth what each 3 defendant did or did not do that contributed to the delay. Indeed, plaintiff does not identify which 4 primary care physician was responsible for following up with plaintiff’s care following the first 5 EGD. Moreover, plaintiff claims that “doctors” unduly delayed the surgery, but names as a 6 defendant J. Lewis, who does not appear to be a doctor. Plaintiff is advised that he must set forth 7 charging allegations as to each named defendant to enable the court to determine whether plaintiff 8 has alleged sufficient facts to demonstrate that each defendant was deliberately indifferent rather 9 than possibly negligent. As set forth above, even medical malpractice is insufficient to state a 10 cognizable civil rights claim. Despite the severity of plaintiff’s medical condition, plaintiff is 11 cautioned that deliberate indifference is a very high standard, and he must allege specific facts 12 demonstrating that each individual acted, or failed to act, in conscious disregard of an excessive 13 risk to plaintiff’s health. 14 VI. Leave to Amend 15 Because plaintiff failed to include specific factual charging allegations as to each named 16 defendant, plaintiff’s complaint must be dismissed. However, plaintiff is granted leave to file an 17 amended complaint. 18 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 19 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v. 20 Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each 21 named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is 22 some affirmative link or connection between a defendant’s actions and the claimed deprivation. 23 Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 24 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil 25 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 27 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. This requirement exists 6 1 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 2 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 3 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 4 original complaint, each claim and the involvement of each defendant must be sufficiently 5 alleged. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 8 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 9 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 10 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 11 Director of the California Department of Corrections and Rehabilitation filed concurrently 12 herewith. 13 3. Plaintiff’s complaint is dismissed. 14 4. Within thirty days from the date of this order, plaintiff shall complete the attached 15 Notice of Amendment and submit the following documents to the court: 16 a. The completed Notice of Amendment; and 17 b. An original and one copy of the Amended Complaint. 18 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 19 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 20 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 21 Failure to file an amended complaint in accordance with this order may result in the 22 dismissal of this action. 23 Dated: September 5, 2017 24 25 /teno1802.14n 26 27 28 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL TENORE, 12 13 No. 2:17-cv-1802 KJN P Plaintiff, v. ORDER 14 EVALYN HOROWITZ, et al., 15 Defendants. 16 17 18 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 19 20 21 22 23 24 25 26 27 28 Amended Complaint DATED: ________________________________ Plaintiff

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