(PC) Brooks v. Covello et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/19/2023 GRANTING the 2 Motion to Proceed IFP and DISMISSING the 1 Complaint. Amended Complaint due within 30 days. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR BROOKS, JR.,

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No. 2:22-cv-01967-CKD P

Plaintiff,
v.

ORDER

PATRICK COVELLO, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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I.

Screening Requirement

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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II.

Allegations in the Complaint

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At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule

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Creek State Prison. Plaintiff sues the medical doctor who performed surgery on his right hand on

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September 6, 2022. He also names the hospital where the surgery was performed, the Warden of
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Mule Creek State Prison, as well as John Doe I who is employed as the Chief Medical Officer at

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the prison. ECF No. 1 at 2.

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In claim one, plaintiff alleges that the Warden and Chief Medical Officer were

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deliberately indifferent to his serious medical needs in violation of the Eighth Amendment

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because they are both responsible for the medical care of inmates at Mule Creek. ECF No. 1 at 3.

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In this capacity, plaintiff contends that they are responsible for his hand injury as well as his

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resulting emotional distress.

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In his second and third claims, plaintiff raises a supplemental state law claim for medical

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malpractice against the defendant doctor at San Joaquin General Hospital who operated on his

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right hand. ECF No. 1 at 4-5. Plaintiff contends that his right hand is still swollen following

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surgery, he is in severe pain, and that he has limited use of his hand. ECF No. 1 at 4-5.

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By way of relief, plaintiff seeks compensatory and punitive damages.

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III.

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The following legal standards are provided based on plaintiff’s pro se status as well as the

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Legal Standards

nature of the allegations in the complaint.

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A.

Linkage

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The civil rights statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another's affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must

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link each named defendant with some affirmative act or omission that demonstrates a violation of

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plaintiff's federal rights.

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B.

Supervisory Liability

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Government officials may not be held liable for the unconstitutional conduct of their
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subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)

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(“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability,

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each Government official, his or her title notwithstanding is only liable for his or her own

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misconduct.”). When the named defendant holds a supervisory position, the causal link between

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the defendant and the claimed constitutional violation must be specifically alleged; that is, a

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plaintiff must allege some facts indicating that the defendant either personally participated in or

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directed the alleged deprivation of constitutional rights or knew of the violations and failed to act

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to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).

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C.

Deliberate Indifference

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Denial or delay of medical care for a prisoner’s serious medical needs may constitute a

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violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

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97, 104-05 (1976). An individual is liable for such a violation only when the individual is

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deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).

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In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439

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F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the

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plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton infliction of

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pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d

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at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.

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Second, the plaintiff must show the defendant’s response to the need was deliberately
indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act
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or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

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indifference. Id. Under this standard, the prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but that person

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“must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

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approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A

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showing of merely negligent medical care is not enough to establish a constitutional violation.

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Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A

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difference of opinion about the proper course of treatment is not deliberate indifference, nor does

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a dispute between a prisoner and prison officials over the necessity for or extent of medical

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treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058

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(9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of

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medical treatment, “without more, is insufficient to state a claim of deliberate medical

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indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

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Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the

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prisoner must show that the delay caused “significant harm and that Defendants should have

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known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060.

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D.

Supplemental State Law Claims

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“[I]n any civil action of which the district courts have original jurisdiction, the district

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courts shall have supplemental jurisdiction over all other claims that are so related to claims in the

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action within such original jurisdiction that they form part of the same case or controversy under

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Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, “once judicial

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power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under

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1367(c) is discretionary” since primary responsibility for developing and applying state law rests

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with the state courts. Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc).

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E.

Exhaustion Requirement

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Plaintiff is advised that under 42 U.S.C. § 1997e(a) “[n]o action shall be brought with

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respect to prison conditions under section 1983 of this title, or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative
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remedies as are available are exhausted.”

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IV.

Analysis

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The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon

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which relief can be granted under federal law. The Eighth Amendment deliberate indifference

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claim against defendants Covello and John Doe I are based entirely on their role as supervisors at

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Mule Creek. However, government officials may not be held liable for the unconstitutional

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conduct of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S.

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662, 677 (2009). The allegations against defendant Dowbak, who performed the surgery, are all

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based on state law violations. Because the complaint has not properly pleaded any federal claim,

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this court will not exercise its discretion to retain supplemental jurisdiction over these state law

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claims. See 28 U.S.C. § 1367(c)(3) (explaining that district courts may decline to exercise

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supplemental jurisdiction over state law claims when it has dismissed all claims over which it has

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original jurisdiction). For all these reasons, the complaint must be dismissed. The court will,

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however, grant leave to file an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

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is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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V.

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The following information is meant to explain this order in plain English and is not

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Plain Language Summary for Pro Se Party

intended as legal advice.

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The court has reviewed the allegations in your complaint and determined that they do not

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state any federal claim against the defendants. Your complaint is being dismissed, but you are

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being given the chance to fix the problems identified in this screening order.

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Although you are not required to do so, you may file an amended complaint within 30

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days from the date of this order. If you choose to file an amended complaint, pay particular

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attention to the legal standards identified in this order which may apply to your claims.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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

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

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: May 19, 2023
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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