(PC) Verduzco v. Jao et al

Filing 12

ORDER signed by Magistrate Judge Dennis M. Cota on 11/18/22 DISMISSING 1 Complaint with leave to amend. Amended Complaint due within 30 days. (Woodworth, M.)

Case 2:22-cv-00569-TLN-DMC Document 12 Filed 11/21/22 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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DANIEL VERDUZCO,

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No. 2:22-CV-0569-TLN-DMC-P

Plaintiff,
v.

ORDER

B. JAO, 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 original complaint, See ECF No. 1.

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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 with

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

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

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the Court to conduct the screening required by law when the allegations are vague and

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conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff is a prisoner currently housed at the California Health Care Facility

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(CHCF), located in Stockton, California. See ECF. No. 1, pg. 1. Plaintiff brings suit against the

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following defendants: (1) B. Jao, Psychiatric Technician; (2) L. Areja, Certified Nurse Assistant;

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(3) Z. Mohammed, Psychiatric Technician; (4) A. Ojagwu, Registered Nurse; (5) Doe I; (6) Doe

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II; (7) L. Taylor, Registered Nurse; (8) R. Morashige, Psychologist; (9) A. Ferrera, Respiratory

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Therapist; (10) Z. Rasool-Vali, Doctor of Medicine; (11) K Sill, Registered Nurse; (12) N.

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Pensanti, Registered Nurse; (13) M. Folorunso, Registered Nurse; (14) J. Trinidad, Registered

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Nurse; (15) M. Sandy, Registered Nurse; (16) J. Rosenof, Respiratory Therapist; (17) J. Tran,

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Registered Nurse; (18) M. Taye, Registered Nurse; (19) R. Recarey, Chief Executive Officer;

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(20) C. Bidad, Psychiatric Technician; (21) B. Housain, Registered Nurse; (22) M. Lowe,

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Registered Nurse; and (23) A. Prasad, Registered Nurse. Id. at 1-2.
Plaintiff alleges the violation of his Eighth Amendment rights in the following

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three claims.

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First Claim

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Plaintiff’s first claim alleges the violation of his Eighth Amendment rights because

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he was not properly supervised during Suicide Watch, which led to self-harm and the amputation

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of his finger. See ECF No. 1, pg. 6. On October 1, 2019, Plaintiff was in an Interdisciplinary

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Treatment Team (IDTT) hearing. Id. at 5. IDTT hearings occur to receive input from the patient

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and update treatment as needed. Plaintiff stated that he had the urge to cut off his finger and

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requested to be placed on Suicide Watch. See ECF No. 1, pg. 5. Within two hours, Plaintiff was

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able to cut away the tissue of his fingertip with a staple and snapped his finger bone. Id. Plaintiff
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alleges that Defendant Doe I failed to ensure his safety because a magazine was left in his room.

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Id. Plaintiff was able to deconstruct the magazine and use the staples from the magazine to injure

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himself. Id. Furthermore, Plaintiff alleges Defendant Jao did not ensure proper supervision

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because he was pre-occupied browsing his computer instead. Id. Plaintiff alleges that the actions

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of Defendants Doe I and Jao violated his Eighth Amendment rights because they should have

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ensured no harm was inflicted upon himself during the Suicide Watch. Id.

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Second Claim

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Plaintiff’s second claim alleges the violation of his Eighth Amendment rights

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because of the deliberate indifference towards his medical and mental needs. See ECF No. 1, pg.

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6. According to Plaintiff, on October 17, the Inspector General notified CHCF staff that Plaintiff

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intended to cut off his finger again due to severe anxiety and paranoia. Id. Plaintiff was placed on

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an increased level of Suicide Watch. Id. At approximately 4 a.m., Plaintiff began to cut off his

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finger again. Id. Plaintiff alleges that Defendant Areja failed to properly supervise him because

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Defendant Areja was drifting to sleep. Id. Somehow, the facts are unclear, but Plaintiff obtained

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a razor blade while placed on Suicide Watch and began cutting off his finger. Id. When

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Defendant Areja was relieved from their shift, Defendant Mohammed was assigned to supervise

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Plaintiff. Id. Plaintiff claims that despite being placed on Suicide Watch, he did not receive the

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necessary care. Id. According to Plaintiff, Defendant Ojagwu, a CHCF registered nurse, was

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aware of Plaintiff’s condition but did nothing to assist his bleeding finger. Id. Plaintiff continued

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to cut his finger while Defendant Mohammed drifted on and off to sleep. Id.

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Plaintiff alleges he requested medical assistance from Defendants Mohammed and

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Ojagwu, but Defendant Ojagwu only slid gauze underneath Plaintiff’s door. Id. Defendant

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Ojagwu stated to Plaintiff that he would be examined by a physician around 8 a.m. Id. At 6:30

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a.m., Defendant Mohammed called “custody” because Plaintiff stated that he was in immense

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pain and his finger would not stop bleeding. Id. Plaintiff finally received medical assistance from

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an unidentified female who wrapped Plaintiff’s finger, but the bleeding continued. Id.

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At approximately 10 a.m., Plaintiff was finally seen by a physician. Id. at 7. When

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the physician removed the gauze, Plaintiff’s finger began profusely bleeding which caused a pool

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of blood on the floor. Id. Plaintiff was sent to the onsite hospital and given 23 stitches on his

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index finger. Id. However, within a couple of days, the finger had turned black from gangrene.

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Id. Plaintiff had to undergo a partial amputation on his index finger. Id. Plaintiff alleges that

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Defendant Ojagwu’s delayed response led to this partial amputation. Id. Plaintiff alleges that the

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actions of Defendants Areja, Mohammed, and Ojagwu violated his Eighth Amendment rights

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because he suffered unnecessary pain and suffering, which led to gangrene and partial

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amputation. Id.

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Third Claim

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In his third claim, Plaintiff alleges the violation of Eighth Amendment rights

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because of the blatant disregard for his medical and mental health needs. Id. at 8. On February

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20, 2020, Plaintiff’s mental health declined as he became severely depressed and withdrawn. Id.

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On March 4, Plaintiff was notified by California Department of Corrections and Rehabilitation

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(CDCR) that they did not find Plaintiff was sexually abused by an unidentified psychologist. Id.

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The sexual abuse has been allegedly occurring since 2017. Id. As a result, Plaintiff’s self-harm

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ideations persisted heavily. Id. Plaintiff wrote to Defendant Rasool-Vali, “I’m depressed,

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withdrawn, and have completely isolated myself. I have not been medication compliant in 2

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weeks. I’m not okay.” ECF No. 1, pg. 5. Plaintiff also wrote to Defendant Morashige regarding

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his depression. Id. Somehow, Plaintiff cut off the tip of his index finger again on April 12. Id. at

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8. The facts do not assert if Plaintiff was on Suicide Watch again or how he was able to cut off

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his finger. Plaintiff repeatedly writes about his severe depression and suicidal ideations to

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Defendants Ferrera, Morashige, Folorunso, Rosenof, Trinidad, Rasool-Vali, and Housain. See

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ECF No. 1, pg. 9-10.

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In May 2020, Plaintiff attempted to report nurse misconduct regarding an inmate,

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named Lomeli (#K-28928). Id. at 10. Plaintiff described to Defendant Sill that he has witnessed

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Inmate Lomeli tell Defendant Sandy about his suicidal ideations, but Defendant Sandy simply

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walked away. Id. Defendant Sill stated that Plaintiff needed to report his complaint to someone
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else because she is not Defendant Sandy’s supervisor. Id. Plaintiff urged that Defendant Sill has a

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duty to intervene or report this to Defendant Sandy’s supervisor. Id. However, Defendant Sill

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stated she had no duty to Inmate Lomeli. Id. She is not worried about inmates reporting her. Id.

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Lastly, according to Plaintiff, Defendant Pensanti disclosed to him that she was instructed to

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place Plaintiff’s documentations of depression and suicidal ideations onto a “special folder” that

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should not be scanned. Id. It is unclear why Plaintiff’s documents need to be scanned. Plaintiff

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told Defendant Pensanti that her misconduct was illegal. See ECF No. 1, pg. 9. However,

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Defendant Pensanti did not want to disobey her directives. Id.

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The following day, Plaintiff reported to Defendant Recarey that Defendant Sill is

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indifferent about Inmate Lomeli’s severe depression and suicidal ideations. Id. at 12.

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Furthermore, Plaintiff also reported about Defendant Pensanti’s misconduct to stop scanning his

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documents called “CDCR 7225”. Id. On May 10, Plaintiff sent a health care grievance along with

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other forms of documentations describing his severe depression and suicidal ideations. Id. at 13.

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Plaintiff states that 14 years of solitary confinement has heavily impacted his mental health. Id. at

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14. On May 22nd, Plaintiff was placed on Suicide Watch again. Id. at 15. Plaintiff refused meals

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for days. Id. Plaintiff wore his cut-off finger as a necklace but later decided to mail his finger to

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the Law Office of Rosen, Bien, Galvan, and Grunfeld, LLP. Id.
On May 28, Plaintiff cut off the tip of his middle finger and broke the bone as

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well. Id. Plaintiff mailed his middle finger along with a letter to the Office of the Inspector

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General. Id. at 16. As a result, the Inspector General sent one of their staff to perform a wellness

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check on Plaintiff on June 1. Id. Overall, Plaintiff alleges that the listed defendants’ actions

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violated his Eighth Amendment rights because he suffered unnecessary pain and suffering along

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with the amputation of his two fingers. Id. at 8. Plaintiff is seeking compensatory and punitive

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damages of $200,000 from each listed defendant along with the appointment of counsel for relief.

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Id. at 17.

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Case 2:22-cv-00569-TLN-DMC Document 12 Filed 11/21/22 Page 6 of 11
II. DISCUSSION

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The Court finds that Plaintiff has failed to state cognizable claims for the violation

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of his Eighth Amendment rights. Plaintiff asserts the violation of his Eighth Amendment rights in

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three claims. On his first claim, the Court finds that he has not stated a cognizable claim against

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Defendants Doe I and Jao due to the lack of supervision during his Suicide Watch because they

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lacked a sufficiently culpable mind. Following the same reasoning, Plaintiff has failed to assert a

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cognizable claim against Defendant Areja for the same allegations in his second claim. In

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Plaintiff’s second claim, he has failed to state a cognizable claim against Defendants Mohammed

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and Ojagwu for the alleged delay of medical assistance. Lastly, in his third claim, Plaintiff has

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failed to state a cognizable claim against Defendants Ferrera, Morashige, Folorunso, Rosenof,

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Trinidad, Rasool-Vali, Housain, Sill, Sandy, Recarey, and Pesanti, based on the vague and

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conclusory allegations against those Defendants.
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). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of 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). A prison official violates the Eighth Amendment only when

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

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

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” Id.

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Case 2:22-cv-00569-TLN-DMC Document 12 Filed 11/21/22 Page 7 of 11
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Under these principles, prison officials have a duty to take reasonable steps to

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protect inmates from harm. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982);

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Farmer, 511 U.S. at 833. Liability exists only when two requirements are met: (1) objectively,

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the prisoner was incarcerated under conditions presenting a substantial risk of serious harm; and

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(2) subjectively, prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837.

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The very obviousness of the risk may suffice to establish the knowledge element. See Wallis v.

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Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if evidence

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is presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844. The

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knowledge element does not require that the plaintiff prove that prison officials know for a

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certainty that the inmate’s safety is in danger, but it requires proof of more than a mere suspicion

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of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the plaintiff must

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show that prison officials disregarded a risk. Thus, where prison officials actually knew of a

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substantial risk, they are not liable if they took reasonable steps to respond to the risk, even if

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harm ultimately was not averted. See Farmer, 511 U.S. at 844.
A.

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Defendants Doe I and Jao
The Court finds that Plaintiff has not stated a cognizable Eighth Amendment claim

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against Defendants Doe I and Jao. Plaintiff has failed to show that these defendants’ actions led

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to the denial of his personal safety. Plaintiff was placed on Suicide Watch upon his request when

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he stated that he had the urge to cut off his finger, thus showing that reasonable steps were taken

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to respond to the risk of self-harm. Unfortunately, Plaintiff was able to inflict harm onto himself

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with a magazine’s staple, but there are not sufficient facts to show that Defendants Doe I and Jao

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had the purpose of inflicting harm onto him by leaving the magazine. Plaintiff asserts the same

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allegations in his second claim against Defendant Areja for the failure to supervise him on

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Suicide Watch. Following the same reasoning discussed, Defendant Areja lacked a sufficiently

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culpable mind. Therefore, Plaintiff is unable to meet the requirements of an Eighth Amendment

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claim against Defendants Doe I and Jao. Plaintiff will have the opportunity to amend or stand on

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the original complaint.

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Case 2:22-cv-00569-TLN-DMC Document 12 Filed 11/21/22 Page 8 of 11
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B.

Defendants Mohammed and Ojagwu
“Denial of medical attention to prisoners constitutes an [E]ighth [A]mendment

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violation if the denial amounts to deliberate indifference to serious medical needs of the

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prisoners.” Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), abrogated in part on

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other grounds by Sandin v. Connor, 515 U.S. 472 (1995) (citing Estelle v. Gamble, 429 U.S. 97,

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106 (1976)); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298

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F.3d 898, 905 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996); 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).
Delay of, or interference with, medical treatment can also amount to deliberate

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indifference. See Jett, 439 F.3d at 1096; Clement, 298 F.3d at 905; Hallett, 296 F.3d at 744;

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Lopez, 203 F.3d at 1131; Jackson, 90 F.3d at 332; McGuckin, 974 F.2d at 1059; Hutchinson v.

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United States, 838 F.2d 390, 394 (9th Cir. 1988). Where the prisoner is alleging that delay of

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medical treatment evinces deliberate indifference, however, the prisoner must show that the delay

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led to further injury. See Hallett, 296 F.3d at 745-46; McGuckin, 974 F.2d at 1060; Shapley v.

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Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).

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Plaintiff states that Defendants Mohammed and Ojagwu delayed medical treatment

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which caused Plaintiff to develop gangrene. However, Defendant Ojagwu advised Plaintiff that a

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physician would visit him later during the day, thereby, showing no deliberate indifference.

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Furthermore, Defendant Ojagwu provided Plaintiff gauze in the meantime and when the injury

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worsened, Defendant Mohammed sought medical assistance. As Plaintiff stated, an unidentified

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female wrapped his bleeding finger while waiting for the physician to visit him. Therefore, there

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are multiple instances to show that Plaintiff received medical assistance, thereby, showing a lack

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of deliberate indifference towards him by Defendants Mohammed and Ojagwu. In conclusion,

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Plaintiff has failed to establish that the delay of medical assistance constituted a violation of his

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Eighth Amendment rights. Plaintiff will nonetheless be provided leave to amend as to

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Defendants Mohammed and Ojagwu.
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Defendants Ferrera, Morashige, Folorunso, Rosenof, Trinidad, Rasool-Vali,
Housain, Sill, Sandy, Recarey, Pesanti, Doe II, Taylor, Than, Taye,
Bidad, Lowe, and Phasab

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

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C.

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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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Here, Plaintiff has provided vague and conclusory allegations against the multiple

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remaining defendants. The Court is sympathetic towards Plaintiff’s repeated outreach to

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Defendants Ferrera, Morashige, Folorunso, Rosenof, Trinidad, Rasool-Vali, and Housain.

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However, the Court cannot ascertain the named defendants’ actual connection or link to Plaintiff

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nor if they are official personnel. Therefore, Plaintiff will have the opportunity to amend or stand

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on the original complaint.

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Plaintiff further alleges the deprivation of his Eight Amendment rights against

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Defendants Sill, Sandy, Recarey, and Pesanti. Plaintiff’s claim is insufficient because Defendant

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Sandy did not cause the deprivation of a constitutional right against Plaintiff. However,

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Defendant Sandy may have caused a deprivation against Inmate Lomeli. The Court clarifies that,

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while deliberate indifference towards Inmate Lomeli may rise to a cognizable claim for the

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deprivation of his constitutional rights, it is not Plaintiff’s claim to make. The same reasoning

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applies to Defendants Sill and Recarey. Plaintiff has also failed to state a cognizable claim

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against Defendant Pesanti. The Court cannot determine how Defendant Pesanti’s actions to place

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his documents in a “special folder” leads to the violation of his Eight Amendment rights.
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Lastly, Plaintiff further alleges a claim against Defendants Doe II, Taylor, Than,

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Taye, Bidad, Lowe, and Phasab. Again, Plaintiff fails to provide a causal or affirmative link and

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simply names them as defendants. Plaintiff’s claim is insufficient to provide fair notice of the

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claim and the ground upon which it rests. Plaintiff will be provided an opportunity to amend or to

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stand on the original complaint against the named defendants.

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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 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 original complaint is dismissed with leave to amend; and

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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.

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Dated: November 18, 2022

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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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