(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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMON ANDERSON, 12 13 14 15 No. 2:24-CV-0483-DMC Plaintiffs, v. ORDER KEVIN SMITH, et al., Defendants. 16 17 18 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. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 This action proceeds on Plaintiff’s first amended complaint. See ECF No. 11. 11 Plaintiff names the following defendants: (1) Kevin Smith, a physician and surgeon at Mule 12 Creek State Prison (MCSP); (2) Michael Ullery, a physician and surgeon at MCSP; (3) Bhupinder 13 Lehil, a physician and surgeon at MCSP; (4) Wesley Vaughn, chief physician and a surgeon at 14 MCSP; Peter Lee, a physician and surgeon at MCSP; (6) Kevin Yang, a registered nurse at 15 MCSP; (7) Klatt, a registered nurse at MCSP; and (8) Gavin Newsom, Governor of California. 16 See id. at 2-3. Plaintiff alleges facts in this amended complaint identical to those in his initial 17 complaint. See ECF No. 1. The initial complaint only brought claims against Smith, Ullery, Lehil, 18 Vaughn, and Wong. See id. The Court found that Plaintiff had presented cognizable Eighth 19 Amendment medical deliberate indifference claims against Ullery, Lehil, Wong, and Klatt, 20 although Klatt was not named as a defendant in the initial complaint. See ECF No. 10. Plaintiff 21 was granted leave to amend his claims against Defendant Vaughn. See id. 22 In addition to the facts alleged in the initial complaint, Plaintiff has incorporated 23 all of the facts and medical documents from a separately filed emergency motion for preliminary 24 injunction. See ECF. No. 2; ECF No. 11, pgs. 14-31. Facts alleged in the emergency motion are 25 consistent with the facts alleged in the rest of the complaint and do not set forth any substantial 26 additional facts. See ECF No. 11, pgs. 14-31 Plaintiff has further amended his original complaint 27 to include facts alleging constitutional rights violations by Defendants Ullery, Yang, Smith, 28 Vaughn, Lee, and Newsom. See id. at 12-13. Finally, Plaintiff has included documents related to 2 1 denial of medical services. See id. at 32-40. Plaintiff now alleges violations of his rights under the 2 Eighth Amendment for deliberate indifference to medical needs, under the First Amendment for 3 retaliation, and under the Fourteenth Amendment for unequal treatment. See id. at 9-13. 4 Plaintiff claims that, prior to June 1, 2023, he had had six back surgeries, which 5 were a combination of “Laminectomies [and] Disectomies [sic]” See id. at 9. In June 2023, 6 Plaintiff began experiencing severe lower back pain, numbness in his groin area and left leg, 7 nerve pain in both legs, and incontinence. See id. On June 8, Plaintiff was taken to the emergency 8 room when he suffered severe burns in his groin area that he was unable to feel. See id. Plaintiff 9 was referred to a neurosurgeon for a consultation and prescribed pain medication, which Plaintiff 10 claims he did not receive. See id. Plaintiff later met with Defendant Lehil, his primary care 11 physician, and described his symptoms. See id. Defendant Lehil referred Plaintiff to a 12 neurosurgeon, gave him a cane and a wheelchair, and provided Plaintiff with a 14-day 13 prescription for Prednisone. See id. at 9-10. Plaintiff expressed at that time that he wished to have 14 the surgery as he was a recovering heroin addict and wanted to avoid relying on “hard pain 15 medication.” Id. at 10. 16 On June 30, Plaintiff met with a neurosurgeon, Dr. Thaiyananthan, who 17 recommended Plaintiff undergo a lumbar fusion. See id. at 10. Plaintiff later met again with 18 Defendant Lehil, who submitted a Request for Services (RFS) on July 10. See id. Plaintiff claims 19 that this RFS did not include all information relevant to his condition, including Plaintiff’s 20 physical limitations, numbness, or incontinence. See id. The RFS was later denied by someone 21 Plaintiff believes to be Defendant Smith, who had never physically examined Plaintiff. See id. 22 From July 10 until approximately October 20, Plaintiff claims to have experienced 23 “ongoing torture” and never got more than an hour or two of sleep at a time. See id. During this 24 time, Plaintiff claims to have begged Defendant Klatt for help. See id. Plaintiff claims Defendant 25 Klatt would tell Plaintiff that the surgery would happen soon and that he would send Plaintiff to 26 the hospital when asked. See id. at 10-11. In late October, Plaintiff informed Defendant Klatt that 27 he would like to go to the hospital, but Defendant Klatt instead sent him to an unknown doctor 28 who treated plaintiff as “a drug seeking nuisance.” Id. at 11. 3 1 In early October, Plaintiff’s incontinence became persistent, and Plaintiff 2 submitted a 602 inmate grievance for denying Plaintiff the surgery. See id. On October 20, 3 Plaintiff met again with Defendant Lehil, who informed Plaintiff that the RFS had been denied. 4 See id. Plaintiff informed Defendant Lehil that he had filed a grievance with the prison. See id. 5 Defendant Lehil sent Plaintiff back to meet again with Dr. Thaiyanathan. See id. Plaintiff claims 6 Dr. Thaiyanathan did not understand why the surgery was not performed and said he would order 7 it again. See id. 8 9 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 10 informed Plaintiff that he would need to submit another RFS as Defendant Ullery had denied the 11 previous RFS because Defendant Wong had written in Plaintiff’s chart that there was nothing 12 wrong with him. See id. at 11-12. Plaintiff believes that Defendant Klatt told Defendant Ullery 13 that nothing was wrong with Plaintiff. See id. at 12. Plaintiff alleges that Defendant Ullery sent 14 Defendant Wong to see Plaintiff and conspired to lie to prevent Plaintiff’s surgery to shield them 15 from liability related to the previously filed inmate grievance. See id. 16 At the meeting on October 26, Defendant Lehil informed Plaintiff that he would 17 submit another RFS. See id. Plaintiff insisted that Defendant Lehil include all of his symptoms, 18 including the incontinence, lack of sleep, and torturous pain. See id. However, Plaintiff claims 19 that Defendant Lehil did not include the correct information. In mid-November, Defendant Lehil 20 informed Plaintiff that the new RFS had been denied. See id. At that point, plaintiff claims to 21 have been suffering from “severe depression, anxiety, pain, and hopelessness.” Id. When Plaintiff 22 requested a urologist to address his incontinence, Plaintiff claims Defendant Lehil responded with 23 “we are done here now go!” Id. 24 In January 2024, Plaintiff met again with Defendant Lehil. See id. Plaintiff claims 25 Defendant Lehil told him “I am shipping you out so another Dr. has to deal with you.” Id. 26 Defendant Lehil also submitted another RFS. See id. A few days after that meeting, Plaintiff was 27 informed by Correctional Counselor Mendoza that he was being transferred on Defendant Lehil’s 28 orders. See id. When Plaintiff informed Mendoza of what Defendant Lehil had said, Mendoza 4 1 2 agreed to prevent the transfer. See id. Plaintiff alleges that “Defendants have all shown their willingness to lie and cover 3 up and retaliate all to escape liability for not providing plaintiff with a surgery that if not done 4 will cause irreparable harm” Id. Plaintiff does not offer additional factual allegations to support 5 this claim. Plaintiff believes that Defendants Ullery, Yang, Smith, Vaughn, and Lee comprise the 6 “SMART” committee responsible for denying Defendant Lehil’s RFS’s. See id. at 12-13. Plaintiff 7 claims that each denial states a different reason for denying the surgery, which reflects an 8 intention to torture Plaintiff. See id. at 13. Plaintiff additionally alleges that Defendant Vaughn 9 told Plaintiff to take advantage of the therapies offered to him. See id. When asked what therapies 10 11 he was referring to, Defendant Vaughn responded, “we are done here.” Id. Finally, Plaintiff claims that Defendant Newsom allows transgender inmates to 12 receive elective surgeries for gender-affirming care despite the unnecessary risks involved. See 13 id. Plaintiff claims that this is in contrast to decisions made regarding his health and the 14 recommendations of Dr. Thaiyanathan. See id. 15 16 II. DISCUSSION 17 As with the original complaint, the Court finds that Plaintiff has stated cognizable 18 claims under the Eighth Amendment against the following defendants for deliberate indifference 19 to Plaintiff’s medical needs: Defendant Lehil for incorrectly documenting Plaintiff’s symptoms, 20 Defendant Klatt for ignoring Plaintiff’s requests for medical assistance, Defendant Wong for 21 entering a chart note stating nothing was wrong with Plaintiff despite not examining him, and 22 Defendant Smith for denying Plaintiff’s surgery despite not examining Plaintiff. Plaintiff has also 23 stated cognizable claims under the Eighth Amendment for deliberate indifference to Plaintiff’s 24 medical needs against Defendants Klatt, Ullery, and Wong for conspiring to send Defendant 25 Wong to see Plaintiff and noting that there was nothing wrong with Plaintiff despite not 26 examining him. Plaintiff has also stated cognizable claims under the Eighth Amendment against 27 Defendants Lehil and Vaughn under the Eighth Amendment for denying Plaintiff access to a 28 medical specialist to address his incontinence. Plaintiff has failed to present cognizable claims 5 1 against Defendants Yang, Lee, and Newsom as Plaintiff has failed to establish a causal 2 connection between these defendants and the alleged violations of constitutional rights. 3 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 4 connection or link between the actions of the named defendants and the alleged deprivations. See 5 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 6 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 7 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 8 an act which he is legally required to do that causes the deprivation of which complaint is made.” 9 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 10 concerning the involvement of official personnel in civil rights violations are not sufficient. See 11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 12 specific facts as to each individual defendant’s causal role in the alleged constitutional 13 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 14 Here, Plaintiff does not allege any facts that show a causal connection between 15 actions taken by Defendant Newsom, who is named for the first time in the first amended 16 complaint, and the alleged constitutional violations. Similarly, while Plaintiff does express his 17 belief that Defendants Yang and Lee are members of the “SMART” committee that denied his 18 RFS, Plaintiff does not allege any facts to support this claim and the belief appears to be only 19 speculative. In any event, Plaintiff has not explained the specific actions of Defendants Yang and 20 Lee. Plaintiff will be provided one further opportunity to amend to allege facts showing how 21 these defendants were involved in the alleged constitutional violations. 22 23 24 III. CONCLUSION Because it is possible that the deficiencies identified in this order may be cured by 25 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 26 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 27 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 28 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 6 1 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 2 amended complaint must be complete in itself without reference to any prior pleading. See id. 3 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 4 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 5 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 6 each named defendant is involved and must set forth some affirmative link or connection between 7 each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 8 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 9 Because the complaint appears to otherwise state cognizable claims, if no amended 10 complaint is filed within the time allowed therefor, the Court will issue findings and 11 recommendations that the claims identified herein as defective be dismissed, as well as such 12 further orders as are necessary for service of process as to the cognizable claims. 13 14 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a second amended complaint within 30 days of the date of service of this order. 15 16 Dated: June 5, 2024 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7

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