McGhee v. Kushner et al

Filing 9

ORDER signed by Magistrate Judge Dennis M. Cota on 11/20/2018 ORDERING Plaintiff may file a first amended complaint within 30 days of the date of service of this order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RALPH McGHEE,

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No. 2:17-CV-2059-JAM-DMC-P

Plaintiff,
v.

ORDER

WILLIAM KUSHNER, III, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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

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

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff names the following as defendants: (1) William Kushner, DDS; and

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(2) Vincent Hu, DDS. See Doc. 1, pp. 1, 2. According to plaintiff, he was “forced” to sign a

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form indicating his refusal to attend a dental appointment. Plaintiff alleges defendant Kushner

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responded to an informal grievance concerning the issue. See id. at 2. Plaintiff states defendant

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Kushner informed him it was policy and procedure for the dental office to obtain an inmate’s

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signature on a refusal form when the inmate is unable to attend a medical appointment. See id.

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According to plaintiff, this reasoning “is fraught with error” and constitutes a denial of equal

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protection because other inmates who were unable to attend medical appointments were not

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required to sign a refusal form. See id. Plaintiff adds: “Defendants Kushner and Hu was [sic]

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adamant about making Plaintiff sign a refusal slip. . . .” Id. at 4. Plaintiff alleges defendants’

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conduct violated his rights under the Fourteenth Amendment to equal protection. Plaintiff also

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claims defendants violated his right to be free from harassment.

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II. DISCUSSION
The court finds plaintiff fails to state a claim for harassment.1 The treatment a

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prisoner receives in prison and the conditions under which the prisoner is confined are subject to

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scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See

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Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The

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Eighth Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards,

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Plaintiff’s equal protection claim appears to be cognizable.
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humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement

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may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation,

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medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986).

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A prison official violates the Eighth Amendment only when two requirements are met:

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(1) objectively, the official’s act or omission must be so serious such that it results in the denial of

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the minimal civilized measure of life’s necessities; and (2) subjectively, the prison official must

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have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S.

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at 834. Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently

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culpable mind.” See id. Allegations of verbal harassment do not state a claim under the Eighth

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Amendment unless it is alleged that the harassment was “calculated to . . . cause [the prisoner]

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psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also

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Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).

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In addition, the prisoner must show that the verbal comments were unusually gross, even for a

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prison setting, and that he was in fact psychologically damaged as a result of the comments.

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See Keenan, 83 F.3d at 1092.

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In this case, plaintiff simply has not alleged facts which would sustain a

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harassment claim. Specifically, plaintiff does not allege whether defendant forced him to sign the

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refusal form in order to cause plaintiff psychological damage. Further, plaintiff does not allege

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either defendants’ conduct was unusually gross. Finally, there are no allegations to indicate

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defendants’ conduct was, objectively, so serious as to result in the denial of the minimal civilized

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measure of life’s necessities. Plaintiff will be provided an opportunity to amend the complaint.

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III. CONCLUSION
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. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the

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prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be 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).

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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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Accordingly, IT IS HEREBY ORDERED that plaintiff may file a first amended
complaint within 30 days of the date of service of this order.

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Dated: November 20, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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