Munster v. Lapids et al

Filing 8

ORDER OF SERVICE. Dispositive Motion due by 12/27/2013. Signed by Magistrate Judge Nandor J. Vadas on 10/28/2013. (njvlc1, COURT STAFF) (Filed on 10/28/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 EUREKA DIVISION 6 7 PAUL WILLIAM MUNSTER, 8 Plaintiff, No. C 13-3268 NJV (PR) ORDER OF SERVICE v. 9 DR. LAPIDS, et. al., Defendants. 11 For the Northern District of California United States District Court 10 / 12 13 Plaintiff, who appears to be a pretrial detainee at Santa Cruz Jail, has filed a pro se 14 civil rights complaint under 42 U.S.C. § 1983. The original complaint was dismissed with 15 leave to amend. Plaintiff has filed an amended complaint. 16 17 18 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 22 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 23 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 24 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 26 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 27 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 28 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 5 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 6 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 7 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 8 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 9 framework of a complaint, they must be supported by factual allegations. When there are 10 well-pleaded factual allegations, a court should assume their veracity and then determine 11 For the Northern District of California omitted). Although in order to state a claim a complaint “does not need detailed factual 2 United States District Court 1 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 12 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 B. 18 19 Legal Claims Plaintiff alleges he has been provided inadequate medical care while being held at Santa Cruz Jail. 20 Deliberate indifference to serious medical needs violates the Eighth Amendment's 21 proscription against cruel and unusual punishment.1 Estelle v. Gamble, 429 U.S. 97, 104 22 23 24 25 26 27 28 1 Even though pretrial detainees' claims arise under the Due Process Clause, the Eighth Amendment serves as a benchmark for evaluating those claims. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees provide minimum standard of care for pretrial detainees). The Ninth Circuit has determined that the appropriate standard for evaluating constitutional claims brought by pretrial detainees is the same one used to evaluate convicted prisoners' claims under the Eighth Amendment. "The requirement of conduct that amounts to 'deliberate indifference' provides an appropriate balance of the pretrial detainees' right to not be punished with the deference given to prison officials to manage the prisons." Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (citation omitted). 2 1 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 2 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 3 A determination of "deliberate indifference" involves an examination of two elements: the 4 seriousness of the prisoner's medical need and the nature of the defendant's response to 5 that need. Id. at 1059. 6 A "serious" medical need exists if the failure to treat a prisoner's condition could 7 result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The 8 existence of an injury that a reasonable doctor or patient would find important and worthy of 9 comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of 11 For the Northern District of California United States District Court 10 indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60. 12 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 13 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 14 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only 15 “be aware of facts from which the inference could be drawn that a substantial risk of serious 16 harm exists,” but he “must also draw the inference.” Id. If a prison official should have 17 been aware of the risk, but was not, then the official has not violated the Eighth 18 Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 19 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison 20 medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. 21 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 22 Supervisor defendants are entitled to qualified immunity where the allegations 23 against them are simply "bald" or "conclusory" because such allegations do not "plausibly" 24 establish the supervisors' personal involvement in their subordinates' constitutional wrong, 25 Iqbal, 556 U.S. at 675-84 (noting no vicarious liability under Section 1983 or Bivens 26 actions), and unfairly subject the supervisor defendants to the expense of discovery and 27 continued litigation, Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (general 28 3 1 allegations about supervisors' oversight responsibilities and knowledge of independent 2 reports documenting the challenged conduct failed to state a claim for supervisor liability). 3 So it is insufficient for a plaintiff only to allege that supervisors knew about the constitutional 4 violation and that they generally created policies and procedures that led to the violation, 5 without alleging "a specific policy" or "a specific event" instigated by them that led to the 6 constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (emphasis in 7 original). Under no circumstances is there respondeat superior liability under section 1983. 8 Or, in layman's terms, under no circumstances is there liability under section 1983 solely 9 because one is responsible for the actions or omissions of another. See Taylor v. List, 880 11 For the Northern District of California United States District Court 10 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff states that he has compression fractures in his vertebrae, sciatica in both 12 legs and a broken ankle. He states that he is in constant pain and has described how Dr. 13 Lapids has not properly addressed his pain issues and certain pain prescriptions have not 14 been provided that were prescribed by his doctors prior to his detention. He states he has 15 also not been allowed to use an air cast for his leg. These claims against Dr. Lapids are 16 sufficient to proceed. 17 Plaintiff has failed to provided sufficient allegations against physician’s assistant 18 Wilson. Plaintiff states that Wilson has been rude and did not prescribe sufficient dosages 19 of drugs and has failed to provide pain relief. Other than these general allegations plaintiff 20 has failed to describe Wilson’s specific actions, despite being informed in the court’s initial 21 review that more information was required. These bare allegations are insufficient to state 22 a claim under Iqbal. "A claim has facial plausibility when the plaintiff pleads factual content 23 that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged." Iqbal, 556 U.S., at 678. 25 Plaintiff has also failed to link Defendant Beltz, the medical supervisor, to the alleged 26 inadequate medical care. As noted above, simply that she is a supervisor fails to state a 27 claim against her. That she denied his grievances is also insufficient as there is no 28 4 1 constitutional right to an administrative appeal or grievance system. See Ramirez v. 2 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). CONCLUSION 3 4 5 6 1. All Defendants are DISMISSED without prejudice except for Defendant Dr. Terry Lapids. 2. The clerk shall issue a summons and Magistrate Judge jurisdiction consent form 7 and the United States Marshal shall serve, without prepayment of fees, the summons, 8 Magistrate Judge jurisdiction consent form, copies of the amended complaint (Docket No. 9 6) with attachments and copies of this order on Dr. Terry Lapids at Santa Cruz Jail. 11 For the Northern District of California United States District Court 10 3. In order to expedite the resolution of this case, the Court orders as follows: a. No later than sixty days from the date of service, Defendant shall file a 12 motion for summary judgment or other dispositive motion. The motion shall be supported 13 by adequate factual documentation and shall conform in all respects to Federal Rule of 14 Civil Procedure 56, and shall include as exhibits all records and incident reports stemming 15 from the events at issue. If Defendant is of the opinion that this case cannot be resolved by 16 summary judgment, she shall so inform the Court prior to the date his summary judgment 17 motion is due. All papers filed with the Court shall be promptly served on Plaintiff. 18 b. At the time the dispositive motion is served, Defendant shall also serve, on 19 a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 20 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 21 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and 22 Wyatt notices must be given at the time motion for summary judgment or motion to dismiss 23 for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement). 24 c. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 25 Court and served upon Defendant no later than thirty days from the date the motion was 26 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 27 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 28 5 1 2 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). If Defendant files an unenumerated motion to dismiss claiming that Plaintiff failed to 3 exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), Plaintiff 4 should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” 5 which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th 6 Cir. 2003). 7 8 9 11 For the Northern District of California United States District Court 10 d. If Defendant wishes to file a reply brief, he shall do so no later than fifteen days after the opposition is served upon her. e. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the court so orders at a later date. 4. All communications by Plaintiff with the Court must be served on Defendant, or 12 Defendant’s counsel once counsel has been designated, by mailing a true copy of the 13 document to Defendant or Defendant’s counsel. 14 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 15 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 16 parties may conduct discovery. 17 6. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 18 informed of any change of address by filing a separate paper with the clerk headed “Notice 19 of Change of Address.” He also must comply with the Court's orders in a timely fashion. 20 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 21 Federal Rule of Civil Procedure 41(b). 22 23 IT IS SO ORDERED. Dated: October 28, 2013. NANDOR J. VADAS United States Magistrate Judge 24 25 26 G:\PRO-SE\NJV\CR.13\Munster3268.serve.wpd 27 28 6 1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case 3 dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil 4 Procedure will, if granted, end your case. judgment. Generally, summary judgment must be granted when there is no genuine issue 7 of material fact--that is, if there is no real dispute about any fact that would affect the result 8 of your case, the party who asked for summary judgment is entitled to judgment as a matter 9 of law, which will end your case. When a party you are suing makes a motion for summary 10 judgment that is properly supported by declarations (or other sworn testimony), you cannot 11 For the Northern District of California Rule 56 tells you what you must do in order to oppose a motion for summary 6 United States District Court 5 simply rely on what your complaint says. Instead, you must set out specific facts in 12 declarations, depositions, answers to interrogatories, or authenticated documents, as 13 provided in Rule 56(e), that contradict the facts shown in Defendant's declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not 15 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 16 against you. If summary judgment is granted, your case will be dismissed and there will be 17 no trial. NOTICE -- WARNING (EXHAUSTION) 18 19 20 21 If Defendant files an unenumerated motion to dismiss for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case. You have the right to present any evidence you may have which tends to show that 22 you did exhaust your administrative remedies. Such evidence may be in the form of 23 declarations (statements signed under penalty of perjury) or authenticated documents, that 24 is, documents accompanied by a declaration showing where they came from and why they 25 are authentic, or other sworn papers, such as answers to interrogatories or depositions. 26 27 If Defendant files a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. 28 7

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