Marroquin v. Helen et al

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. The request for appointment of counsel is DENIED. (Docket # 2.) The amended complaint must be filed no later than June 22, 2012. (Illston, Susan) (Filed on 5/16/2012) Modified on 5/16/2012 (ysS, COURT STAFF). (Additional attachment(s) added on 5/16/2012: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 EDGAR MARROQUIN, 9 United States District Court For the Northern District of California 10 11 12 13 14 No. C 12-617 SI (pr) Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND v. MS. HELEN; et al., Defendants. / INTRODUCTION 15 Edgar Marroquin, an inmate currently housed at Ironwood State Prison, filed a pro se 16 civil rights action under 42 U.S.C. § 1983 complaining about events and omissions that occurred 17 at Salinas Valley State Prison, where he was housed earlier. His complaint is now before the 18 court for review under 28 U.S.C. § 1915A. 19 20 BACKGROUND 21 Marroquin complains about the response of prison officials to his medical needs. He 22 alleges the following in his complaint: Marroquin fractured his elbow while playing in the 23 recreation yard at Salinas Valley State Prison at about 10:00 a.m. on Saturday, June 26, 2010. 24 He was taken to the prison's medical clinic, where nurse Helen failed and refused to provide 25 treatment for his fractured elbow, which was very painful. Nurse Helen did not refer him to a 26 medical doctor or orthopedic surgeon, and sent him back to his cell without any medical 27 treatment. At about 1:00 p.m. that same day, Marroquin returned to the clinic "begging" for help 28 1 due to the pain he was experiencing. Docket # 1, p. 6. He again was refused medical treatment 2 by nurse Helen and sent back to his cell. Nurse Helen was dismissive toward his complaints of 3 pain and said she thought he was "faking." Id. Marroquin's complaint indicates that nurse Helen 4 told him that the emergency room doctor would not examine and treat him on a weekend 5 because his condition was not an emergency; Marroquin was informed him that he would have 6 to wait for a weekday to see a doctor.1 7 8 On Sunday, June 27, Marroquin went to the medical gate to obtain help for his pain and was told to "get out of here" by some unidentified individual. Docket # 1, p. 8. On Monday, June 28, Marroquin went to the medical clinic for treatment. His elbow was 10 United States District Court For the Northern District of California 9 x-rayed and it was determined that he had a fracture and a bone chip. His arm was splinted and 11 he was given medication for pain. Marroquin continued to have pain thereafter. He states that 12 physical therapy causes pain and he is still taking pain medication. Id. at 5. 13 Exhibits to the complaint show abundant encounters with medical staff for care of his 14 elbow problems. He has seen doctors and other health care providers numerous times, has had 15 multiple x-rays of his elbow, has received various pain medications, has received physical 16 therapy for his elbow, was seen by an outside orthopedic surgeon, and has had an MRI. 17 18 19 DISCUSSION A. Review Of Complaint 20 A federal court must engage in a preliminary screening of any case in which a prisoner 21 seeks redress from a governmental entity or officer or employee of a governmental entity. See 22 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss 23 24 25 26 27 28 1 Although the court accepts for pleading purposes Marroquin's allegations that nurse Helen was dismissive and sent him away without any treatment, an exhibit attached to the complaint suggests otherwise. The "encounter form: musculoskeletal complaint (nontraumatic)" filled out for Marroquin on June 26, 2010, reflects that the patient was examined and was found to have pain and tenderness, his elbow hurt to bend, and had "cap refill <2" and "good radial pulse." Docket # 1-2, p. 2. The form further reflects that the patient was instructed to (a) take acetaminophen as needed for pain, (b) apply ice, and (c) resubmit a health care service request form if symptoms persisted, or there was an increase in swelling or pain, or a decreased range of motion. Id. The form also has a notation, "RN line Monday to F/U ? x-ray," which suggests he was going to have a follow-up appointment with possible x-rays on Monday. Id. 2 1 any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, 2 or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 3 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 4 696, 699 (9th Cir. 1990). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that 6 a right secured by the Constitution or laws of the United States was violated and (2) that the 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). Deliberate indifference to a prisoner’s serious medical needs amounts to the cruel and 10 United States District Court For the Northern District of California 9 unusual punishment prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 11 (1976). A prison official violates the Eighth Amendment only when two requirements are met: 12 (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, 13 subjectively, deliberately indifferent to the inmate’s health or safety. See Farmer v. Brennan, 14 511 U.S. 825, 834 (1994). 15 Liberally construed, the complaint states a cognizable § 1983 claim against nurse Helen 16 for deliberate indifference to Marroquin's serious medical needs based on her alleged refusal to 17 provide any treatment or access to a doctor for Marroquin on the day he fractured his elbow. 18 Although the complaint states a claim against nurse Helen, it otherwise fails to state a 19 claim for relief. There are numerous problems with Marroquin's complaint that he must attempt 20 to cure in his amended complaint. Marroquin is not a lawyer, and need not try to write like what 21 he thinks a lawyer writes like. Among other things, it is unclear from the wordy complaint 22 whether Marroquin is attempting to assert numerous theories of liability all stemming from the 23 response to his fractured elbow for the first two days after he fractured it or wants to complain 24 about responses to his medical needs beyond those of the weekend he fractured his elbow. His 25 pleadings will be liberally construed because he is a pro se litigant, so he should focus on the 26 facts – trying to write a clear and simple description of what occurred in his amended complaint 27 (i.e., describing what happened or failed to happen, who caused it, when the events occurred, and 28 any resulting injury). In the following paragraphs, the court will explain why no claims are 3 1 stated other than the one claim against nurse Helen. Marroquin should file an amended 2 complaint if he has additional information to plead that may allow him to overcome the problems 3 discussed below. First, the allegations of the complaint, even liberally construed, do not suggest deliberate 5 indifference by anyone other than nurse Helen that weekend. The complaint does not allege that 6 any other defendant knew of and disregarded a serious risk of harm to Marroquin that weekend. 7 To the contrary, the allegations in the complaint suggest that no one else learned of Marroquin's 8 need for care because nurse Helen did not perceive his situation to be an emergency and sent him 9 back to his cell without treatment. Although Marroquin alleges that nurse Helen, nurse Jenny 10 United States District Court For the Northern District of California 4 and Doe # 3 (the physician on duty) "did not arrange for plaintiff to be treated immediately, or 11 transported to the nearest hospital emergency room" (Docket # 1, p. 9), he does not allege that 12 the latter two defendants were even aware of his condition. A defendant cannot be said to be 13 deliberately indifferent to a medical need of which he/she was unaware. 14 Second, the complaint also does not allege facts suggestive of deliberate indifference to 15 medical needs after the weekend he fractured his elbow. Although Marroquin alleges that he 16 continues to experience pain from the elbow, the existence of pain does not itself demonstrate 17 an Eighth Amendment violation. His exhibits show abundant encounters with medical staff for 18 care of his elbow problems, as well as diagnostic tests, physical therapy and the provision of pain 19 medications. 20 Third, the allegations that the administrative appeals were not properly handled do not 21 state a due process claim against any defendant. There is no constitutional right to a prison or 22 jail administrative appeal or grievance system in California. See Ramirez v. Galaza, 334 F.3d 23 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. 24 Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Cal. Code Regs. tit. 15, §§ 3084.1. Marroquin had 25 no federal constitutional right to a properly functioning appeal system. An incorrect decision 26 on an administrative appeal or failure to handle it in a particular way therefore did not amount 27 to a violation of his right to due process. 28 Fourth, the allegations regarding the handling of his administrative appeals also do not 4 1 state a claim for deliberate indifference to medical needs because the fractured elbow had been 2 addressed by the time the administrative appeals were processed. 3 administrative appeal might give rise to Eighth Amendment liability where there is an ongoing 4 unmet medical need, but that does not appear to be the case here because Marroquin was 5 receiving care within two days (at the latest) after he fractured his elbow. The handling of the 6 later-filed administrative appeals would not affect the course of care (or absence of care) that 7 already had occurred. The handling of an Fifth, a claim is not stated against G. Ellis, the CEO for the Salinas Valley medical 9 department. Ellis has no liability based on a respondeat superior theory because there is no 10 United States District Court For the Northern District of California 8 respondeat superior liability under § 1983, i.e. no liability under the theory that one is liable 11 simply because he employs a person who has violated plaintiff's rights. See Taylor v. List, 880 12 F.2d 1040, 1045 (9th Cir. 1989); see also Monell v. Dep't of Social Servs., 436 U.S. 658, 691 13 (1978) (no respondeat superior liability for municipalities). Ellis also has no supervisory liability 14 on the allegations of the complaint. A supervisor may be liable under section 1983 upon a 15 showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal 16 connection between the supervisor's wrongful conduct and the constitutional violation. See Starr 17 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Redman v. County of San Diego, 942 F.2d 1435, 18 1446 (9th Cir. 1991) (en banc). A supervisor therefore generally "is only liable for constitutional 19 violations of his subordinates if the supervisor participated in or directed the violations, or knew 20 of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045. Finally, 21 Marroquin's failure-to-train-and-supervise allegations against Ellis are inadequate. Marroquin 22 alleges that Ellis failed to properly train and supervise medical personnel, but does not allege that 23 Ellis played any role in his medical care. Supervisor defendants are entitled to qualified 24 immunity where the allegations against them are simply “bald” or “conclusory” because such 25 allegations do not “plausibly” establish the supervisors’ personal involvement in their 26 subordinates’ constitutional wrong. Ashcroft v. Iqbal, 556 U.S. 662, 675-83 (2009) (noting no 27 vicarious liability under § 1983 or Bivens actions). It is insufficient for a plaintiff only to allege 28 that supervisors knew about the constitutional violation and that they generally created policies 5 1 and procedures that led to the violation, without alleging “a specific policy” or “a specific event” 2 instigated by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937 (9th 3 Cir. 2012) (emphasis in original). The conclusory allegations against Ellis do not plausibly 4 establish his personal involvement in the alleged constitutional violations. In his amended 5 complaint, Marroquin must allege facts showing a basis for liability for Ellis. Sixth, Marroquin apparently does not understand Doe defendants. Although the use of 7 "John Doe" to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 8 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518 (9th 9 Cir. 1968), some situations may arise where the identity of alleged defendants cannot be known 10 United States District Court For the Northern District of California 6 prior to the filing of a complaint. While the use of Doe defendants is acceptable to withstand 11 dismissal of a complaint at the initial review stage, using Doe defendants creates its own 12 problem: those persons cannot be served with process in this action until they are identified by 13 their real names. When a plaintiff knows a defendant's identity, that defendant should be 14 referred to by name and not referred to by both name and as a Doe defendant. Here, Marroquin 15 refers to nurse Helen as "Ms. Helen, Doe # 1 one" who is a "registered nurse." See Docket # 16 1, p. 3. Since he knows at least her first name and position, he can refer to her as nurse Helen, 17 and need not also refer to her as a Doe defendant. By referring to her both by name and as a Doe 18 defendant, he creates confusion as to whether he is speaking of one person or two persons. 19 Similarly, nurse Jenny is not properly designated as Doe # 2 because he knows at least her first 20 name and position. 21 22 B. Request For Appointment Of Counsel 23 Plaintiff has requested that counsel be appointed to assist him in this action. A district 24 court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an 25 indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 26 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits 27 and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 28 issues involved. See id. Neither of these factors is dispositive and both must be viewed together 6 1 before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances 2 requiring the appointment of counsel are not evident. The request for appointment of counsel 3 is DENIED. (Docket # 2.) 4 CONCLUSION 5 For the foregoing reasons, the complaint is dismissed with leave to amend. The amended 7 complaint must be filed no later than June 22, 2012, and must include the caption and civil case 8 number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff 9 is cautioned that his amended complaint must be a complete statement of his claims and will 10 United States District Court For the Northern District of California 6 supersede existing pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 11 1981) ("a plaintiff waives all causes of action alleged in the original complaint which are not 12 alleged in the amended complaint.") Failure to file the amended complaint by the deadline will 13 result in the dismissal of all defendants and claims other than the deliberate indifference claim 14 against nurse Helen. 15 16 IT IS SO ORDERED. Dated: May 16, 2012 _______________________ SUSAN ILLSTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 7

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