(PC) Brownlee v. Overstreet et al

Filing 25

ORDER signed by Magistrate Judge Dennis M. Cota on 1/17/2023 DISMISSING plaintiff White from this action and DISMISSING plaintiff Brownlee's second amended complaint with leave to amend. Plaintiff shall file a third amended complaint within 30 days. (Yin, K)

Case 2:21-cv-00610-DAD-DMC Document 25 Filed 01/17/23 Page 1 of 11
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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 JUSTIN BROWNLEE

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Plaintiff,

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v.

Defendant.

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ORDER

J. OVERSTREET,

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No. 2:21-CV-00610-DAD-DMC-P

Plaintiffs Brownlee and White 1, prisoners proceeding pro se, bring this civil rights
action under 42 U.S.C. § 1983. Pending before the Court is Plaintiffs’ second amended
complaint, ECF No. 18.
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
It appears two Plaintiffs bring this action on behalf of themselves: Plaintiff
Benjamin Justin Brownlee and Plaintiff Tumajay Acconnie White. See ECF No. 18, pgs. 1-2.
Both Plaintiffs were incarcerated at California State Prison – Sacramento (“CSP-Sac”) when the
purported violations occurred. See id. Plaintiff White is newly added and was not named as a
Plaintiff in any previous complaints.
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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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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).

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In order to survive dismissal for failure to state a claim, a complaint must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp

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v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

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The mere possibility of misconduct will not suffice to meet this standard. See id. at 679. Because

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Plaintiff must allege with at least some degree of particularity overt acts by specific defendants

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that support the claims, vague and conclusory allegations fail to satisfy this standard.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiffs name J. Overstreet, a registered nurse at CSP-Sac, as the only Defendant.

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See ECF No. 18, pg. 3. Plaintiffs bring one claim under the Eighth Amendment for deliberate

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indifference based on unsafe conditions and improper medical treatment resulting from

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Defendant’s failure to quarantine Plaintiffs after testing positive for the Covid-19 virus. See id.,

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pgs. 5-6. In general, Plaintiffs claim that once they were both infected with Covid-19, Defendant

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did not adequately attend to their medical needs or quarantine Plaintiffs to prevent other inmates

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from contracting the virus. See, generally, id., pgs. 5-9.

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Case 2:21-cv-00610-DAD-DMC Document 25 Filed 01/17/23 Page 3 of 11
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Specifically, Plaintiffs allege that in or around the middle of November, 2020,

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after returning from a court date, Plaintiff White was notified that the trip officers who had

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escorted Plaintiff White had tested positive for the Covid-19 virus and that Plaintiff White must

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be placed in quarantine. See id., pg. 5. However, after returning, Plaintiffs allege that Defendant

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did not place Plaintiff White in quarantine, as required by prison policy, and failed to test Plaintiff

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White within 24-48 hours after being in close contact with a positive Covid-19 person. See id.;

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see also id., pg. 9. Thereafter, Plaintiffs contend that Defendant lost/misplaced Plaintiff White’s

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Covid test, and Plaintiff White had to be retested as a result. See id. Plaintiffs allege that Plaintiff

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White submitted to Defendant two medical sick call slips requesting that Plaintiff White be seen

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by a doctor, because Plaintiff White was feeling sick, having chest pain, and had lost the ability to

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smell or taste. See id., pgs. 5-6. On November 21, Defendant returned to test Plaintiff White and

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allegedly told Plaintiff White that Defendant had forgotten to tell her supervisor that Plaintiff

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White needed to be placed in quarantine due to Plaintiff White’s contact with the Covid-19. See

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id., pg. 6. On November 24, Defendant returned to notify Plaintiff White that Plaintiff White had

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tested positive for the virus. See id. On November 30, Defendant notified prison officers that B-

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5 Building was placed on quarantine status. See id., pg. 7.

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Plaintiffs then allege that on November 28 and December 1, Plaintiff Brownlee

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submitted medical slips because Plaintiff Brownlee was feeling sick with body pain, trouble

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breathing, and inability to taste or smell. See id. On December 1, Plaintiff Brownlee was tested

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for Covid-19 and tested positive for the virus. See id. On December 4, Defendant retested

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Plaintiff Brownlee with a positive result; on December 8, Defendant retested Plaintiff Brownlee,

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but the results were negative; and finally, on December 11, Defendant again retested Plaintiff

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Brownlee with a positive result. See id., pg. 8.

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Plaintiffs assert that Defendant did not quarantine Plaintiffs. See id. Plaintiffs

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contend that Defendant did not move Plaintiffs from the housing unit to the quarantine unit “so

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the Petitioners do[] not give or past [sic] the virus to somebody else.” Id., pg. 7. According to

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Plaintiffs, Defendant did not notify her supervisor that Plaintiffs were supposed to be on

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quarantine and “allowed us to walk around the building and yard pas[sing] the Covid-19 virus
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around.” See id., pg. 8.
Plaintiffs allegedly complained to prison officers in the building where they were

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housed about their health and wellbeing, having high temperatures, non-stop bathroom use,

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inability to eat, shortness of breath, wheezing, and Plaintiff Brownlee’s continuous use of inhaler.

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See id., pgs. 7-8. However, according to Plaintiffs, Defendant did not check, or have someone

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else check, on Plaintiffs. See id., pg. 7. Plaintiffs allege that Defendant failed to provide

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adequate medical care to the infected, including Plaintiffs. See id., pg. 9.

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Finally, Plaintiffs contend that Defendant “negligently failed to properly handle
positives [sic] outbreak in prisoner[] White and prisoner Brownlee,” “properly quarantine

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petitioner Brownlee and petitioner White with a positive case of Covid-19 virus, ” and failed to

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follow “unspecified medical policies and guidelines in CSP-Sac for Covid-19 outbreaks” by not

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isolating Plaintiffs in order to “stop a surge/outbreak from spreading to other prisoners to make

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them sick or cause death to a prisoner.” See id., pg. 9.

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II. DISCUSSION

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A.

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This second amended complaint is brought by Plaintiff White and Plaintiff

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Brownlee, but Plaintiff White was not named as a Plaintiff in the original or first amended

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complaint. Cf. id., pgs. 1-2 with ECF Nos. 1 and 13. “A district court possesses inherent power

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over the administration of its business.” Spurlock v. F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995).

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This power includes the authority to promulgate and enforce rules for the management of

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litigation and its docket. Id. (citation omitted). However, the Court may not simply add a plaintiff

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to the pending civil rights action.

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Plaintiff White

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In propria persona

Local Rule 131(b) of the Eastern District of California requires that all pleadings

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“be signed by the individual attorney for the party presenting them, or by the party involved if

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that party is appearing” in propria persona in the action. See L.R. 131(b); Johns v. County of San

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Diego, 114 F.3d 874, 877 (9th Cir. 1997); C. E. Pope Equity Trust v. United States, 818 F.2d 696,
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697 (9th Cir. 1987). The privilege to appear in propria persona is a privilege personal to the

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Plaintiff. A pro se Plaintiff has no authority to appear as an attorney for another. McShane v.

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United States, 366 F.2d at 288 (citing Russell v. United States, 308 F.2d 78, 79 (9th Cir.1962)).

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Here, Plaintiff White has failed to comply with the requirements of Local Rule

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131(b) as Plaintiff White has not signed the second amended complaint. Indeed, other than

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Plaintiff White being named as a Plaintiff and those facts pertaining to Plaintiff White having

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been alleged in the second amended complaint, the second amended complaint appears to be

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written only by Plaintiff Brownlee, and is only signed by him. Thus, because appearing in

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propria persona is privilege personal only to Plaintiff Brownlee, Plaintiff White has not signed the

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pleading, and appears to not have been involved at all in the preparation of the second amended

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complaint, Plaintiff White must be dismissed. Plaintiff Brownlee may bring this action only on

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his own behalf.
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In forma pauperis status

An action may only proceed despite the failure to pay a filing fee if the party is

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granted in forma pauperis (“IFP) status. Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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All parties seeking to proceed in forma pauperis must qualify for in forma pauperis status.

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Anderson v. California, No. 3:10-cv-02216-MMA (AJB), 2010 WL 4316996, at *1 (S.D. Cal.

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Oct. 27, 2010). As previously explained, the court has a duty to screen all complaints brought by

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prisoners seeking relief against a governmental entity. See 28 U.S.C.1915(A). Each complaint is

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also subject to the fee requirements of 28 U.S.C. § 1915(b)(1), which provides that the CDCR

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shall deduct the initial partial filing fee and additional installment payments from plaintiff’s

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prison trust account each time the amount in the account exceeds $10.00 until the statutory filing

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fee is paid in full.

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In this instance, Plaintiff Brownlee is the only named Plaintiff to have submitted

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an IFP application, and was granted, in forma pauperis in this action. See ECF Nos. 8-9. Plaintiff

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White has failed to submit an IFP application or pay the required filing fee for this action. To the

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extent that Plaintiffs’ attempt to add Plaintiff White to the present complaint is a back door

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attempt to avoid the screening and fee requirements imposed by the Prison Litigation Reform Act,
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Plaintiff White must be dismissed.
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Joinder under Rule 20

Courts have broad discretion regarding the permissive joinder of parties. Fed. R.

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Civ. P. 20, 21; see Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000)

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(recognizing that under Rule 20(a), joinder is proper if “(1) the plaintiffs asserted a right to relief

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arising out of the same transaction and occurrence and (2) some question of law or fact common

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to all the plaintiffs will arise in the action,” and then courts must consider whether permissive

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joinder “ ‘would comport with the principles of fundamental fairness’ or would result in prejudice

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to either side.”) (emphasis in original). But see Webb v. Cal. Dep’t. of Corr. and Rehab., No. 14-

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cv-01528-MJS (PC), 2014 WL 5361961, at *2 (E.D. Cal. Oct. 21, 2014) (denying request to

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permit joinder of incarcerated co-plaintiffs because “the need for co-plaintiffs to agree upon and

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sign all pleadings becomes impossibly burdensome where [co-plaintiffs are incarcerated]”); Pratt

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v. Hedrick, No. C 13-4557 SI (pr), 2014 WL 280626, at *5 (N.D. Cal. Jan. 24, 2014) (denying

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motion to join additional plaintiffs because of “basic case management principles of delay

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reduction and avoidance of confusion”).

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Here, even if Plaintiffs could amend the complaint to show joinder was proper,

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they are individuals in the custody of the California Department of Corrections and

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Rehabilitation. An action brought by multiple inmate plaintiffs proceeding pro se presents

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procedural problems that cause delay and confusion. Delay often arises from the frequent transfer

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of inmates to other facilities or institutions, the changes in address that occur when inmates are

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released to parole, and the difficulties faced by inmates who attempt to communicate with each

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other and with un-incarcerated individuals. Even if both Plaintiffs obtained authorization to

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communicate with each other, delays would be caused by the need for all filings to contain the

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original signatures of both Plaintiffs, since, as provided above, Plaintiffs are not permitted to

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authorize one individual to sign documents for them. Such issues have already arisen here as the

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second amended complaint was not signed by Plaintiff White, Plaintiff Brownlee has no authority

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to appear for Plaintiff White, and Plaintiff White did not submit an application seeking to proceed

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in forma pauperis. Indeed, the Court has been notified that Plaintiff Brownlee has been moved to
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another facility. See ECF No. 24. To avoid the potential prejudice to individual Plaintiffs and

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delayed case management, the Court will not allow here the joinder of Plaintiff White. Plaintiff

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White therefore must be dismissed. Plaintiff White may commence a separate action to litigate

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those civil rights claims related to Plaintiff White.

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B.

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The Court next addresses the substance of Plaintiff Brownlee’s Eighth

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Plaintiff Brownlee

Amendment claim.
The treatment a prisoner receives in prison and the conditions under which the
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). The Eighth Amendment “embodies broad and idealistic concepts of

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dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor,

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515 U.S. 472 (1995). A prison official violates the Eighth Amendment only when objectively,

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the official’s act or omission is so serious such that it results in the denial of the minimal civilized

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measure of life’s necessities; and subjectively, the prison official acted unnecessarily and

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wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, a prison official

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must have 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 include
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whether a reasonable doctor would think that the condition is worthy of comment; whether the

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

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chronic and accompanied by substantial pain. McGuckin, 974 F.2d at 1059.

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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 id. at 1060.

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Thus, deference need not be given to the judgment of prison officials as to decisions concerning

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medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). The complete

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denial of medical attention may constitute deliberate indifference. See Toussaint, 801 F.2d at

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1111. Delay in providing medical treatment, or interference with medical treatment, may also

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constitute deliberate indifference. See Lopez, 203 F.3d at 1131. Where delay is alleged,

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however, the prisoner must also demonstrate that the delay led to further injury. See McGuckin,

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974 F.2d at 1060.
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 fails to satisfy the objective criteria. Plaintiff does not allege any

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facts that failure to treat Plaintiff Brownlee could, or did, result in further significant injury.

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Plaintiff also does not allege facts showing how failing to quarantine White or Plaintiff Brownlee

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posed a serious risk to Plaintiff Brownlee’s health. Plaintiff Brownlee cannot state a claim for

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deliberate indifference to medical needs based on the potential injury to others by failing to

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quarantine him. Plaintiff must state facts sufficient to show how, because of Defendant’s failure

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to quarantine, Plaintiff himself was injured.

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Plaintiff also fails to satisfy the subjective criteria. Plaintiff must assert facts that

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Defendant’s failure to attend to Plaintiff was more than a lack of ordinary care, as negligent

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medical care alone is not enough. Plaintiff must allege specific facts sufficient to show that

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Defendant was aware of an excessive risk to Plaintiff’s health by not checking on him, but

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consciously disregarded that risk. Plaintiff does not allege that his symptoms got worse from

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Defendant’s purported failure; instead, Plaintiff asserts that Defendant did test Plaintiff several

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times for the virus. Speculation regarding the sufficiency of Defendant’s conduct or Plaintiff’s

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symptoms is not enough. A mere possibility of misconduct will not suffice to meet the standard

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Rule 8 requires.

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If Plaintiff is alleging that Defendant delayed providing medical treatment to

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Plaintiff, Plaintiff must demonstrate that Defendant’s delay caused further injury. Plaintiff has

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not alleged facts to show that any delay on the part of Defendant to provide medical treatment to

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Plaintiff caused further injury to Plaintiff.

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Finally, to the extent that Plaintiff is alleging Defendant should have provided a

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different course of treatment in response to his positive Covid-19 test, a difference of opinion in

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medical treatment does not constitute deliberate indifference. Plaintiff must show that the

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treatment given was medically unacceptable under the circumstances, which Plaintiff has failed to

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do here. Plaintiff fails to allege any facts to show that Defendant’s course of treatment was

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medically unacceptable under the circumstances or in conscious disregard of an excessive risk to

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Plaintiff’s health. In other words, Plaintiff’s general statement that Defendant failed to provide

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adequate medical care by not checking on him asserts only a conclusion, not a fact.

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In sum, Plaintiff provides no facts to substantiate a finding that Defendant knew

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her actions were improper but taken nonetheless, despite a known and excessive risk to Plaintiff.

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Without more, negligence in the provision of medical care does not violate the Eighth

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Amendment. Therefore, Plaintiff has not stated a claim under the Eighth Amendment for which

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relief can be granted. Plaintiff Brownlee will be provided an opportunity to amend.

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Case 2:21-cv-00610-DAD-DMC Document 25 Filed 01/17/23 Page 10 of 11
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), overruled on other

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grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). Therefore, if Plaintiff

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amends the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's

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amended complaint complete. See Local Rule 220.

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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).
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 White is dismissed from this action;

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Plaintiff Brownlee’s second amended complaint is dismissed with leave to

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

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amend; and

service of this order.

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Dated: January 17, 2023

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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