Campos-Rodriguez v. D'Agostini et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 4/13/2018 DISMISSING plaintiff's amended complaint with 30 days to file a second amended complaint. Failure to file a second amended complaint within that time will result in a recommendation of dismissal of this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE ARBOR CAMPOS RODRIGUEZ,

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No. 2: 18-cv-0172 KJN P

Plaintiff,
v.

ORDER

JOHN D’AGOSTINI, et al.,
Defendants.

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Plaintiff is a prisoner, proceeding without counsel, with a civil rights action pursuant to 42

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U.S.C. § 1983. On March 12, 2018, the undersigned dismissed plaintiff’s complaint with leave to

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amend. (ECF No. 8.) Pending before the court is the amended complaint. (ECF No. 10.) For

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the reasons stated herein, the amended complaint is dismissed with leave to file a second

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amended complaint.

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Plaintiff is incarcerated at the El Dorado County Jail in South Lake Tahoe, California.

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Named as defendants in the amended complaint are El Dorado County Sheriff D’Agostini, Jail

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Medical Director Kuhn, and Correctional Medical Group Company (“CMGC”). Plaintiff alleges

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that defendant Kuhn denied his request to see an eye doctor. Plaintiff alleges that defendants

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should have known that his vision was failing. Plaintiff alleges that his vision fell from 1.25 to

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1.50, and now to a 1.75 lens prescription, within less than a year of his incarceration. Plaintiff

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alleges that he is also suffering from other injuries, including an injury to his retina.
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In order to state a potentially colorable claim for the denial of the right to medical care,

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plaintiff must allege that he had a serious medical need. See Guerra v. Sweeny, 2016 WL

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5404407 at *3 (E.D. Cal. 2016).

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Plaintiff’s description of his eyesight and eye glass prescriptions indicates that he requires

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reading glasses. See https://www.webmd.com/eye-health/need_reading_glasses#1. In essence,

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plaintiff is alleging that defendants have failed to provide him with stronger reading glasses.

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As the undersigned previously informed plaintiff in the March 12, 2018 order dismissing

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the original complaint, the need for reading glasses does not present a serious medical need. See

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Canell v. Multnomah County, 141 F.Supp.2d 1046, 1057 (D. Or. 2011) (need for reading glasses

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did not present a serious medical need). The undersigned observes that the prescription plaintiff

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seeks, i.e., 1.75, involves a relatively mild correction. See id. As for plaintiff’s claim that his

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eyes are getting worse, “close vision” gets worse with age. Id. Plaintiff’s description of his

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change in prescription, alone, does not indicate a serious medical problem.

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For the reasons stated above, plaintiff’s claim that defendants refused to take him to an

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eye doctor so that he could get a stronger prescription for reading glasses is dismissed for failing

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to state a potentially colorable claim for relief. Plaintiff should not include this claim in a second

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amended complaint unless the undersigned has misunderstood his claim.

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Plaintiff does not describe the injury to his retina that defendants allegedly failed to treat.

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For this reason, the undersigned cannot find that plaintiff has demonstrated a serious medical

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need related to his retina. Accordingly, this claim is dismissed with leave to amend. If plaintiff

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files a second amended complaint, he shall clearly describe the injury to his retina which

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defendants allegedly failed to treat.

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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. 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. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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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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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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If plaintiff files a second amended complaint, he must link every named defendant to an
alleged deprivation.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s amended complaint (ECF No.

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10) is dismissed with thirty days to file a second amended complaint; failure to file a second

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amended complaint within that time will result in a recommendation of dismissal of this action.

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Dated: April 13, 2018

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Rod172.ame
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