(PC) Ramos v. Weiss et al

Filing 8

ORDER signed by Magistrate Judge Dennis M. Cota on 10/4/2019 DISMISSING plaintiff's complaint with leave to amend and DENYING as moot plaintiff's 7 motion for expedited screening. Plaintiff shall file a first amended complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN RAMOS,

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No. 2:19-CV-1468-DMC-P

Plaintiff,
v.

ORDER

JEAN WEISS, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (ECF No. 1). Also before the

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court is plaintiff’s motion for expedited screening (ECF No. 7).

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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 Benjamin Ramos names the following as defendants: (1) Jean Weiss (J.

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Weiss), (2) Richard Weiss (R. Weiss), (3) Christopher Smith, and (4) K. Richardson. Plaintiff is

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an inmate at Mule Creek State Prison (MCSP) in Ione, California.
MCSP utilizes “black box” restraints to transport inmates outside of the prison.

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The black box is an eight-pound metal box which is used to attach a prisoner’s waist chains and

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his left and right handcuffs to the center of his body. Plaintiff alleges the black box exerts

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constant twisting pressure on a prisoner’s wrists and shoulders, resulting in physical pain after

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prolonged use. See ECF No. 1, pgs. 5-6.
On November 15, 2017, R. Weiss, plaintiff’s primary care physician, had plaintiff

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transported out of the prison to San Joaquin General Hospital for treatment. He was placed in

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black box restraints for an estimated 8.5 hours. Plaintiff suffered constant pain in his wrists and

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shoulders. At the hospital, plaintiff was diagnosed with prostate cancer. Id.

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Following this visit, R. Weiss told plaintiff he was having him sent to San Joaquin

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for follow-up treatment. Plaintiff told R. Weiss that the black box was causing him great physical

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pain, but R. Weiss did not order him an accommodation despite having to authority to do so. Id.

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Under the orders of R. Weiss and Christopher Smith, the Chief Physician and

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Surgeon for MCSP, plaintiff made follow-up visits for medical treatment on April 23 and May

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15, 2018. On both occasions plaintiff was restrained with the black box and suffered physical pain

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as a result. Id. at pgs. 8-9.

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On June 13, 2018, Plaintiff again complained of the pain caused by wearing the

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black box during his medical visits. On that same day, R. Weiss diagnosed plaintiff as having

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pain in his right hand. Id.

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On the orders of R. Weiss and Smith, plaintiff made two more follow up medical

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visits on August 27 and October 12, 2018. He was again restrained with the black box and

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suffered pain. Id. at pgs. 8-12.

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On December 3, 2018, plaintiff submitted a request for a medical accommodation

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to allow him to travel for treatment without the black box restraint. In stating the reasons for his

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request, plaintiff cited his advanced age, his having arthritis, and the constant pressure on his

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wrists and shoulders. Id.

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On December 6, 2018, R. Weiss filled out a medical form outlining many of

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plaintiff’s physical disabilities. R. Weiss described plaintiff as having severe orthopedic

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conditions of the hips, knees, ankles, feet, and upper extremities. Id. at pg. 14.

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On December 11, 2018, Smith and Jean Weiss, Associate Warden for Americans

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with Disabilities Act prisoners at MCSP, denied plaintiff’s request. Plaintiff was informed that he

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did not meet the criteria for “special cuffing” during transports. See ECF No. 1, pg. 12

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On January 29, 2019 C. Smith denied plaintiff’s appeal. Plaintiff contends that C.

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Smith denied his appeal as a sort of retaliation for plaintiff’s repeated complaints to R. Weiss. Id.

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at pg. 14,15.
On April 17, 2019 R. Weiss submitted a request for hand surgery for the plaintiff’s

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right wrist, citing a collapse of the carpal bone. Id. at pg. 16.
On April 30, 2019, plaintiff’s medical appeal was denied at the third and final

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level. Id.

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On May 15, 2019, an X-ray of plaintiff’s right hand ordered by R. Weiss found an

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increase in pain and mild to moderate arthropathy involving the second and third MCP joints. Id.

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On June 20, 2019, per R. Weiss and Smith’s orders, plaintiff was transported out

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for medical treatment. R. Weiss had prescribed wrist bandages to plaintiff for his injuries, but

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plaintiff was still placed in black box restraints for roughly 8 hours. When the restraints were

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removed, plaintiff’s wrists were revealed to have burst into lesions. Id.

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II. DISCUSSION

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A.

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Causal Connection
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations. See

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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1. K. Richardson

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Here, as to defendant K. Richardson, plaintiff has failed to state a cognizable claim

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under 42 U.S.C. § 1983. Plaintiff has not articulated any actual connection between Richardson’s

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conduct and the alleged deprivation of plaintiff’s rights. Beyond identifying Richardson as the

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“Correctional Counselor II for ADA” in the listing of defendants, plaintiff has completely omitted

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the defendant from his complaint. See ECF No.1, pg. 2. There is no reference to Richardson in

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the plaintiff’s factual allegations and the complaint is silent as to his association with the claims at

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issue.

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2. Jean Weiss

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Here, as to defendant Jean Weiss, plaintiff has also failed to state a cognizable

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claim under 42 U.S.C. § 1983. The extent of the complaint’s mention of J. Weiss is that he or she

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denied plaintiff’s request for a medical accommodation on December 11, 2018, and that he or she

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had independent authority to grant such an accommodation. Plaintiff does not mention what J.

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Weiss’s responsibilities to the plaintiff were, nor the degree to which J. Weiss was aware of his

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injuries. Plaintiff simply states that J. Weiss denied the first of what would ultimately be three

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separate appeals for medical accommodation without describing what effect this specific action

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had on his alleged injuries.

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3. Christopher Smith

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Here, as to defendant Christopher Smith, plaintiff has also failed to state a

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cognizable claim under 42 U.S.C. § 1983. It is unclear to what degree Smith was involved in

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plaintiff’s medical treatment beyond organizing some of plaintiff’s outside medical visits with R.

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Weiss. It is uncertain whether Smith was responsible for providing medical care to plaintiff or to

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what degree he was aware of plaintiff’s injuries. Also, plaintiff alleges that Smith denied his

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accommodation appeal at the second level because he “refu[sed] to cooperate with Defendants

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Richard Weiss’s and Smith’s desires to torture Plaintiff in return for providing Plaintiff necessary

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medical care.” ECF No.1, pg. 15. This however, is a conclusory allegation at best. It is unclear if

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plaintiff is alleging that R. Weiss and Smith conditioned his access to medical treatment on his

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wearing the black box restraints. Nor is it clear if plaintiff is suggesting that Smith was aware of

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his discomfort at wearing the restraints and denied the requests for an accommodation for the

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purpose of causing the plaintiff pain. Therefore, there are insufficient facts from which a causal

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connection can be made between Smith’s individual conduct and plaintiff’s claim of deliberate

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indifference.

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B.

Deliberate Indifference
As to defendant R. Weiss, has failed to allege facts which give rise to a claim of

deliberate indifference.
The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). A prison official violates the Eighth Amendment only when two

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requirements are met: (1) objectively, the official’s act or omission must be so serious such that it

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results in the denial of the minimal civilized measure of life’s necessities; and (2) subjectively,

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the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm.

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See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have

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a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

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see also Farmer, 511 U.S. at 837. An injury or illness is sufficiently serious if the failure to treat a

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prisoner’s condition could result in further significant injury or the “. . . unnecessary and wanton

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infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see also Doty

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v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness are: (1)

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whether a reasonable doctor would think that the condition is worthy of comment; (2) whether the

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condition significantly impacts the prisoner’s daily activities; and (3) whether the condition is

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chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th

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Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference. See

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Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

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that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).
Here, plaintiff’s condition is sufficiently serious to make out an 8th Amendment

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claim. For a period of over one-year, plaintiff alleges that he was subjected to hours of

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excruciating pain to his wrists and upper extremities as a result of the black box restraint. Also,

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plaintiff has alleged facts which plausibly suggest that R. Weiss’s medical attention, or lack

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thereof, contributed to plaintiff’s suffering. From November 15, 2017 to January 20, 2019, R.

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Weiss was aware that the black box restraint was causing severe pain to plaintiff. Yet, despite

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having the authority to issue a medical accommodation, did not do so.

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However, these allegations, if true, do not give rise to a claim of deliberate

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indifference. The complaint makes no suggestion that, in failing to grant plaintiff an

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accommodation, R. Weiss acted wantonly for the purpose of causing plaintiff harm. Nothing in

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the facts suggests that R. Weiss’s inaction was set out with the deliberate purpose of hurting the

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plaintiff. The facts do not even allege that plaintiff made a direct request to R. Weiss for an

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accommodation. While the complete denial of medical attention may constitute deliberate

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indifference, R. Weiss did not completely withhold medical treatment. On the contrary, as the

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facts state, R. Weiss continually diagnosed the plaintiff, requested surgeries and X-rays for the

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plaintiff, and sent him out for treatment.

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The main thrust of plaintiff’s claim is that R. Weiss failed to allow him to travel in

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modified restraints. However, a difference of opinion as to the course of a prisoner’s medical

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treatment does not establish deliberate indifference. R. Weiss did eventually provide plaintiff with

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wrist-bandages to ease the pain caused by the black box, even though plaintiff argues they did not

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help. As currently pled, R. Weiss’s failure to act sooner in the face of plaintiff’s pain at most

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gives rise to a claim of negligence. While this may be sufficient to allege common law medical

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malpractice, it does not establish an 8th Amendment claim.

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III. CONCLUSION

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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 prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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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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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend;

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Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order; and
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Plaintiff’s motion for expedited screening (ECF No. 7) is denied as moot;

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Dated: October 4, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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