Stephen v. Montejo et al

Filing 13

ORDER signed by Magistrate Judge Deborah Barnes on 12/28/2018 DISMISSING plaintiff' s first amended complaint with leave to amend within 30 days. The clerk shall send plaintiff a prisoner complaint form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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No. 2:18-cv-1796 KJM DB P

Plaintiff,
v.

ORDER

E. MONTEJO, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges defendants were deliberately indifferent to his serious medical

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needs in violation of the Eighth Amendment. Before the court is plaintiff’s first amended

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complaint (“FAC”) for screening. For the reasons set forth below, the court will dismiss the FAC

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with leave to amend.

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BACKGROUND
Plaintiff filed his original complaint here on June 22, 2018. He alleged Eighth

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Amendment deliberate indifference claims. Plaintiff appeared to contend that several defendants

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failed to properly diagnose and treat his chronic kidney disease (“CKD”). In addition, plaintiff

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alleged a claim for a “data breach” and a claim for loss of property. On screening, the court first

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considered whether plaintiff should be permitted to proceed in forma pauperis even though he has

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accrued three strikes under 28 U.S.C. § 1915(g). (ECF No. 6.) The court determined that
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plaintiff sufficiently alleged an “imminent danger of serious physical injury” and excepted him

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from the three strikes bar. In addition, the court dismissed plaintiff’s Eighth Amendment claims

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with leave to amend and recommended dismissal without leave to amend of his claims for a data

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breach and loss of property. (ECF No. 6.) On October 10, 2018, plaintiff filed his FAC. (ECF

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No. 10.)

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SCREENING

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As described in the court’s prior screening order, the court is required to screen

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complaints brought by prisoners to determine whether they sufficiently state claims under 42

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U.S.C. § 1983. 28 U.S.C. § 1915A(a). The prisoner must plead an arguable legal and factual

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basis for each claim in order to survive dismissal. Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). In addition, the prisoner must demonstrate a link between the actions of each

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defendant and the deprivation of his rights. Monell v. Dept. of Social Servs., 436 U.S. 658

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(1978). “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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I.

First Amended Complaint
Plaintiff identifies the following defendants in his FAC: Dr. E. Montejo, Dr. F. Rading,

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Dr. R. Sanders, CEO L.W. Austin, and Warden R. Fox. He describes conduct which has occurred

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starting in 2015 at the California Medical Facility (“CMF”), where he was, and continues to be,

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incarcerated.

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Plaintiff alleges that when he arrived at CMF in May 2015, defendant Sanders failed to

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conduct adequate tests. When Sanders retired, defendant Rading took over plaintiff’s care and

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also failed to conduct appropriate tests. It appears that plaintiff is referring to testing to detect

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CKD. At some point in 2017, Dr. Teng diagnosed plaintiff with CKD. However, Dr. Teng was

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then fired “for helping Plaintiff, and other prisoners with hidden Medical Issues.” In 2018,

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plaintiff was seen by defendant Montejo. Montejo failed to treat plaintiff’s CKD “based on age.”

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Plaintiff is presently 66 years old.
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Plaintiff states that he has to urinate frequently and his “kidney filtration-glomerular” has

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degenerated. He alleges that he has also had numerous stomach bacteria and, apparently, is at

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high risk for cancer. Plaintiff makes numerous, conclusory allegations that policies instituted by

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defendants Fox and Austin resulted in the lack of proper medical screening, particularly for older

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inmates, and in unclean water and air in the prison.

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II.

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Has Plaintiff Stated Cognizable Claims for Relief?
Plaintiff again fails to state any cognizable claims for relief. The court first addresses

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plaintiff’s claims for deliberate indifference against defendants Sanders, Rading, and Montejo.

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As plaintiff was informed previously, in order to plead a claim of deliberate indifference to his

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serious medical needs, plaintiff must allege specific facts showing two things:

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(1) A serious medical need. Plaintiff must allege facts showing that the failure to treat his

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medical condition could result in further injury or unnecessary pain. McGuckin v. Smith,

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974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v.

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Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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(2) Defendants were deliberately indifferent to that medical need. Plaintiff must provide facts

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showing that defendants intentionally failed to provide him appropriate care. See

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

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Plaintiff has shown that he has a serious medical problem – chronic kidney disease.

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However, plaintiff has not shown how each defendant’s actions have resulted or could result in

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further injury or unnecessary pain. Plaintiff appears to be alleging that defendants Sanders and

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Rading failed to conduct appropriate tests that would have detected the CKD. However, plaintiff

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does not specify what those tests were or why Sanders and Rading should have known to conduct

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them. Nor does plaintiff show why the failure to detect his CKD in 2015 and 2016 resulted in

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injury to him. Finally, plaintiff fails to explain how Sanders and Rading were more than just

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negligent or careless. See Farmer v. Brennan, 511 U.S. 825, 835 (1994) (Deliberate indifference

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is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of

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due care for the prisoner's interests or safety.’”).

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With respect to defendant Montejo, plaintiff appears to be alleging that Montejo is

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refusing to provide appropriate treatment. However, again, plaintiff does not explain what

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Montejo is doing and what he believes Montejo should be doing. Nor does plaintiff show that

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Montejo’s failure to treat plaintiff appropriately may result in further injury. Finally, while

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plaintiff states that Montejo has made decisions regarding plaintiff’s care based on plaintiff’s age,

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plaintiff does not explain what those decisions are or why they show that Montejo is intentionally

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providing plaintiff with inadequate care.

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With respect to plaintiff’s claims against defendants Austin and Fox, plaintiff attempts to
expand this case to include claims about prison conditions. Those claims do not appear to be

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related to plaintiff’s claims regarding the detection of and treatment for his CKD. Plaintiff may

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not raise unrelated claims against different defendants in this action. See Fed. R. Civ. P. 18(a),

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20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). Therefore, any allegations

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regarding the water or air quality at CMF will be disregarded. If plaintiff wishes to pursue claims

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regarding those issues, he must file a separate suit.

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Plaintiff also attempts to allege that Austin and Fox bore responsibility for the actions of

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the medical defendants because they instituted policies that failed to properly treat older prisoners

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and because they failed to properly train the medical defendants. Plaintiff has not shown there

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was a prison policy to provide inadequate care. Nor has plaintiff shown that these supervisory

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defendants were responsible for training the medical defendants and failed to do so. A prison

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official in a supervisory position is only liable under § 1983 if they were “personally involved in

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the constitutional deprivation or [if] a sufficient causal connection exists between the supervisor’s

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unlawful conduct and the constitutional violation.” Lemire v. Cal. Dep’t of Corrs. & Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013).

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To allege Austin and Fox instituted a prison policy that harmed him, plaintiff must: (1)

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identify that policy with specificity, (2) show that Austin and Fox were directly responsible for it,

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(3) show that Austin and Fox knew the policy could cause plaintiff harm, and (4) show how the

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policy caused him harm. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). To allege

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Austin and Fox failed to train the medical defendants, plaintiff must show: (1) that these
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defendants were responsible for that training, (2) just what they did or did not do, (3) that they

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knew their actions could cause plaintiff harm, and (4) that their actions did cause plaintiff harm.

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See Edgerly v. City & Cnty. of S.F., 599 F.3d 946, 962 (9th Cir. 2010) (dismissing supervisory

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liability claim when no facts “suggest [Sheriff] provided any training to Officers...., or that he was

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responsible for providing formal training to any officers.”).

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III.

Leave to Amend

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The court will give plaintiff one, final opportunity to allege Eighth Amendment claims.

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Plaintiff should very carefully review the instructions set out in the court’s first screening order

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and in this second screening order. Plaintiff should do the following in preparing his amended

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complaint:
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Plaintiff must use the complaint form provided with this order. He should label it

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“Second Amended Complaint.” Plaintiff should carefully fill out the appropriate

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information on that complaint form.

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Plaintiff may only bring claims against more than one defendant if those claims arise out

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of the same events. That means plaintiff may have to choose to raise one claim against

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multiple defendants or to raise more than one claim against one defendant.

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To describe a claim, plaintiff must: (a) identify a person, (b) briefly, but specifically,

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describe what that person did or did not do, and (c) explain why that person’s conduct

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violated plaintiff’s Eighth Amendment rights.

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Plaintiff’s amended complaint must contain any claim he wishes to bring in this case.

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Plaintiff may not refer back to filings made previously. Once an amended pleading is

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filed, the original pleading no longer serves any function in the case. E.D. Cal. R. 220.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s first amended complaint (ECF No. 10) is dismissed with leave to amend.

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

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complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint
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must bear the docket number assigned this case and must be labeled “Second

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Amended Complaint.” Plaintiff’s failure to file an amended complaint within the time

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provided, or otherwise respond to this order, will result in a recommendation that this

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case be dismissed.

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3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.
Dated: December 28, 2018

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DLB:9
DB/prisoner-civil rights/step1796.fac scrn

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