(PC) Anderson v. Smith et al

Filing 12

ORDER signed by Magistrate Judge Dennis M. Cota on 06/05/2024 DIRECTING Plaintiff to file a Second Amended Complaint within 30 days of the date of service of this order. (Lopez, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAMON ANDERSON,

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No. 2:24-CV-0483-DMC

Plaintiffs,
v.

ORDER

KEVIN SMITH, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint, ECF No. 11.

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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). This provision also applies if the plaintiff was incarcerated at the time the action was

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initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel.

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Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or

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portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can

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be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See

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28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “. . . short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply,
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concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to

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Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice

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of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121,

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1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity

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overt acts by specific defendants which support the claims, vague and conclusory allegations fail

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to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening

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required by law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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This action proceeds on Plaintiff’s first amended complaint. See ECF No. 11.

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Plaintiff names the following defendants: (1) Kevin Smith, a physician and surgeon at Mule

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Creek State Prison (MCSP); (2) Michael Ullery, a physician and surgeon at MCSP; (3) Bhupinder

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Lehil, a physician and surgeon at MCSP; (4) Wesley Vaughn, chief physician and a surgeon at

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MCSP; Peter Lee, a physician and surgeon at MCSP; (6) Kevin Yang, a registered nurse at

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MCSP; (7) Klatt, a registered nurse at MCSP; and (8) Gavin Newsom, Governor of California.

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See id. at 2-3. Plaintiff alleges facts in this amended complaint identical to those in his initial

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complaint. See ECF No. 1. The initial complaint only brought claims against Smith, Ullery, Lehil,

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Vaughn, and Wong. See id. The Court found that Plaintiff had presented cognizable Eighth

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Amendment medical deliberate indifference claims against Ullery, Lehil, Wong, and Klatt,

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although Klatt was not named as a defendant in the initial complaint. See ECF No. 10. Plaintiff

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was granted leave to amend his claims against Defendant Vaughn. See id.

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In addition to the facts alleged in the initial complaint, Plaintiff has incorporated

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all of the facts and medical documents from a separately filed emergency motion for preliminary

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injunction. See ECF. No. 2; ECF No. 11, pgs. 14-31. Facts alleged in the emergency motion are

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consistent with the facts alleged in the rest of the complaint and do not set forth any substantial

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additional facts. See ECF No. 11, pgs. 14-31 Plaintiff has further amended his original complaint

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to include facts alleging constitutional rights violations by Defendants Ullery, Yang, Smith,

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Vaughn, Lee, and Newsom. See id. at 12-13. Finally, Plaintiff has included documents related to
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denial of medical services. See id. at 32-40. Plaintiff now alleges violations of his rights under the

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Eighth Amendment for deliberate indifference to medical needs, under the First Amendment for

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retaliation, and under the Fourteenth Amendment for unequal treatment. See id. at 9-13.

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Plaintiff claims that, prior to June 1, 2023, he had had six back surgeries, which

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were a combination of “Laminectomies [and] Disectomies [sic]” See id. at 9. In June 2023,

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Plaintiff began experiencing severe lower back pain, numbness in his groin area and left leg,

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nerve pain in both legs, and incontinence. See id. On June 8, Plaintiff was taken to the emergency

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room when he suffered severe burns in his groin area that he was unable to feel. See id. Plaintiff

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was referred to a neurosurgeon for a consultation and prescribed pain medication, which Plaintiff

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claims he did not receive. See id. Plaintiff later met with Defendant Lehil, his primary care

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physician, and described his symptoms. See id. Defendant Lehil referred Plaintiff to a

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neurosurgeon, gave him a cane and a wheelchair, and provided Plaintiff with a 14-day

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prescription for Prednisone. See id. at 9-10. Plaintiff expressed at that time that he wished to have

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the surgery as he was a recovering heroin addict and wanted to avoid relying on “hard pain

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medication.” Id. at 10.

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On June 30, Plaintiff met with a neurosurgeon, Dr. Thaiyananthan, who

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recommended Plaintiff undergo a lumbar fusion. See id. at 10. Plaintiff later met again with

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Defendant Lehil, who submitted a Request for Services (RFS) on July 10. See id. Plaintiff claims

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that this RFS did not include all information relevant to his condition, including Plaintiff’s

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physical limitations, numbness, or incontinence. See id. The RFS was later denied by someone

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Plaintiff believes to be Defendant Smith, who had never physically examined Plaintiff. See id.

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From July 10 until approximately October 20, Plaintiff claims to have experienced

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“ongoing torture” and never got more than an hour or two of sleep at a time. See id. During this

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time, Plaintiff claims to have begged Defendant Klatt for help. See id. Plaintiff claims Defendant

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Klatt would tell Plaintiff that the surgery would happen soon and that he would send Plaintiff to

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the hospital when asked. See id. at 10-11. In late October, Plaintiff informed Defendant Klatt that

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he would like to go to the hospital, but Defendant Klatt instead sent him to an unknown doctor

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who treated plaintiff as “a drug seeking nuisance.” Id. at 11.
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In early October, Plaintiff’s incontinence became persistent, and Plaintiff

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submitted a 602 inmate grievance for denying Plaintiff the surgery. See id. On October 20,

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Plaintiff met again with Defendant Lehil, who informed Plaintiff that the RFS had been denied.

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See id. Plaintiff informed Defendant Lehil that he had filed a grievance with the prison. See id.

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Defendant Lehil sent Plaintiff back to meet again with Dr. Thaiyanathan. See id. Plaintiff claims

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Dr. Thaiyanathan did not understand why the surgery was not performed and said he would order

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it again. See id.

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On October 23, 2023, Plaintiff met with Defendant Wong who Plaintiff claims did
not physically examine him. See id. On October 26, Plaintiff met with Defendant Lehil, who

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informed Plaintiff that he would need to submit another RFS as Defendant Ullery had denied the

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previous RFS because Defendant Wong had written in Plaintiff’s chart that there was nothing

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wrong with him. See id. at 11-12. Plaintiff believes that Defendant Klatt told Defendant Ullery

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that nothing was wrong with Plaintiff. See id. at 12. Plaintiff alleges that Defendant Ullery sent

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Defendant Wong to see Plaintiff and conspired to lie to prevent Plaintiff’s surgery to shield them

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from liability related to the previously filed inmate grievance. See id.

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At the meeting on October 26, Defendant Lehil informed Plaintiff that he would

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submit another RFS. See id. Plaintiff insisted that Defendant Lehil include all of his symptoms,

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including the incontinence, lack of sleep, and torturous pain. See id. However, Plaintiff claims

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that Defendant Lehil did not include the correct information. In mid-November, Defendant Lehil

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informed Plaintiff that the new RFS had been denied. See id. At that point, plaintiff claims to

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have been suffering from “severe depression, anxiety, pain, and hopelessness.” Id. When Plaintiff

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requested a urologist to address his incontinence, Plaintiff claims Defendant Lehil responded with

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“we are done here now go!” Id.

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In January 2024, Plaintiff met again with Defendant Lehil. See id. Plaintiff claims

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Defendant Lehil told him “I am shipping you out so another Dr. has to deal with you.” Id.

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Defendant Lehil also submitted another RFS. See id. A few days after that meeting, Plaintiff was

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informed by Correctional Counselor Mendoza that he was being transferred on Defendant Lehil’s

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orders. See id. When Plaintiff informed Mendoza of what Defendant Lehil had said, Mendoza
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agreed to prevent the transfer. See id.
Plaintiff alleges that “Defendants have all shown their willingness to lie and cover

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up and retaliate all to escape liability for not providing plaintiff with a surgery that if not done

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will cause irreparable harm” Id. Plaintiff does not offer additional factual allegations to support

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this claim. Plaintiff believes that Defendants Ullery, Yang, Smith, Vaughn, and Lee comprise the

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“SMART” committee responsible for denying Defendant Lehil’s RFS’s. See id. at 12-13. Plaintiff

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claims that each denial states a different reason for denying the surgery, which reflects an

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intention to torture Plaintiff. See id. at 13. Plaintiff additionally alleges that Defendant Vaughn

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told Plaintiff to take advantage of the therapies offered to him. See id. When asked what therapies

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he was referring to, Defendant Vaughn responded, “we are done here.” Id.
Finally, Plaintiff claims that Defendant Newsom allows transgender inmates to

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receive elective surgeries for gender-affirming care despite the unnecessary risks involved. See

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id. Plaintiff claims that this is in contrast to decisions made regarding his health and the

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recommendations of Dr. Thaiyanathan. See id.

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II. DISCUSSION

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As with the original complaint, the Court finds that Plaintiff has stated cognizable

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claims under the Eighth Amendment against the following defendants for deliberate indifference

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to Plaintiff’s medical needs: Defendant Lehil for incorrectly documenting Plaintiff’s symptoms,

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Defendant Klatt for ignoring Plaintiff’s requests for medical assistance, Defendant Wong for

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entering a chart note stating nothing was wrong with Plaintiff despite not examining him, and

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Defendant Smith for denying Plaintiff’s surgery despite not examining Plaintiff. Plaintiff has also

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stated cognizable claims under the Eighth Amendment for deliberate indifference to Plaintiff’s

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medical needs against Defendants Klatt, Ullery, and Wong for conspiring to send Defendant

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Wong to see Plaintiff and noting that there was nothing wrong with Plaintiff despite not

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examining him. Plaintiff has also stated cognizable claims under the Eighth Amendment against

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Defendants Lehil and Vaughn under the Eighth Amendment for denying Plaintiff access to a

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medical specialist to address his incontinence. Plaintiff has failed to present cognizable claims
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against Defendants Yang, Lee, and Newsom as Plaintiff has failed to establish a causal

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connection between these defendants and the alleged violations of constitutional rights.

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

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

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

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

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

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

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

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

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

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

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

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Here, Plaintiff does not allege any facts that show a causal connection between

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actions taken by Defendant Newsom, who is named for the first time in the first amended

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complaint, and the alleged constitutional violations. Similarly, while Plaintiff does express his

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belief that Defendants Yang and Lee are members of the “SMART” committee that denied his

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RFS, Plaintiff does not allege any facts to support this claim and the belief appears to be only

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speculative. In any event, Plaintiff has not explained the specific actions of Defendants Yang and

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Lee. Plaintiff will be provided one further opportunity to amend to allege facts showing how

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these defendants were involved in the alleged constitutional violations.

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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. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the
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prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be 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 between

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each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167

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(9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the Court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a second amended
complaint within 30 days of the date of service of this order.

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Dated: June 5, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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