Smith v. Ahmed

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND; GRANTING LEAVE TO FILE AMENDEDCOMPLAINT. Signed by Magistrate Judge Maria-Elena James on 11/13/2015. (rmm2S, COURT STAFF) (Filed on 11/13/2015)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
United States District Court
For the Northern District of California

10
11

SCOTT W. SMITH

12
13
14
15

No. C 15-03476 MEJ (PR)

Plaintiff,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND; GRANTING
LEAVE TO FILE AMENDED
COMPLAINT

v.
ZAHED U. AHMED, et al.,
Defendant.

/

(Docket No. 7)

16
17

INTRODUCTION

18

Plaintiff, an inmate at Correctional Training Facility–Soledad in Soledad, California,

19

initiated this pro se civil rights action under 42 U.S.C. § 1983. He has been granted leave to

20

proceed in forma pauperis in a separate order. Before the Court screened Plaintiff’s initial

21

complaint, Plaintiff filed a motion for leave to file an amended complaint (Docket No. 7),

22

which the Court GRANTS. The amended complaint (Docket No. 8) supercedes the prior

23

complaint and is now the operative complaint in this action. See Ferdik v. Bonzelet, 963

24

F.2d 1258, 1262 (9th Cir. 1992).

25

The Court now conducts its initial review of the amended complaint (Docket No. 8)

26

pursuant to 28 U.S.C. § 1915A. For the reasons set forth below, this Court dismisses

27

Plaintiff’s federal law claims. If Plaintiff fails to amend his pleadings to state a viable federal

28

claim, this Court will likely decline to exercise supplemental jurisdiction over the remaining
state law claim. See 28 U.S.C. § 1367(c)(3).

DISCUSSION

1
2

I.

STANDARD OF REVIEW

3

A federal court must engage in a preliminary screening of any case in which a

4

prisoner seeks redress from a governmental entity or officer or employee of a governmental

5

entity. 28 U.S.C. § 1915A(a). In its review the Court must identify any cognizable claims,

6

and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

7

may be granted, or seek monetary relief from a defendant who is immune from such relief.

8

28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v.

9

Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).

United States District Court
For the Northern District of California

10

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

11

a right secured by the Constitution or laws of the United States was violated and (2) that the

12

violation was committed by a person acting under the color of state law. West v. Atkins, 487

13

U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under § 1983 if the

14

plaintiff can show that the defendant proximately caused the deprivation of a federally

15

protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives

16

another of a constitutional right within the meaning of § 1983 if he does an affirmative act,

17

participates in another’s affirmative act or omits to perform an act which he is legally

18

required to do, that causes the deprivation of which the plaintiff complains. Id. at 633. The

19

inquiry into causation must be individualized and focus on the duties and responsibilities of

20

each individual defendant whose acts or omissions are alleged to have caused a constitutional

21

deprivation. Id. Sweeping conclusory allegations will not suffice; the plaintiff must instead

22

“set forth specific facts as to each individual defendant’s” deprivation of protected rights. Id.

23

at 634.

24

II.

ANALYSIS

25

A.

26

According to the complaint, in 2011, Plaintiff underwent an unsuccessful back

27

surgery. See Docket No. 8 (“Am. Compl.”) at 5. Following the surgery, his back condition

28

worsened, as documented by MRIs, CT scans and x-ray reports. See id. On August 5, 2014,

Factual Background

2

1

Plaintiff’s cell was searched by prison officials. See id. at 4. Correctional Officer

2

Betancourt authored an observation information chrono wherein he falsely stated that the

3

search had uncovered hoarded medications of morphine, and contraband hypodermic needles

4

or syringes. See Docket No. 8 (“Am. Compl.”) at 4. Dr. Ahmed, the medical provider

5

assigned to Plaintiff, “act[ed] in association” with the falsified information by discontinuing

6

Plaintiff’s pain medication. See id. at 4–5. Dr. Bright and Chief Medical Officer (“CMO”)

7

Posson “acted in association with each other [and with Dr. Ahmed]” by taking away

8

Plaintiff’s walker, discontinuing his pain medications, ignoring Plaintiff’s complaint of blood

9

in his urine and his injured back, and taking no action to address Plaintiff’s health issues.

United States District Court
For the Northern District of California

10

See id. at 5. As a result, Plaintiff’s pain has increased and he is experiencing worse pressure

11

to his lower back and knee areas. See id. At some point, Plaintiff was provided with other

12

pain medications, but these medications were “less useful” and caused him to “bleed

13

internally, appearing in his urine and stool.” See id. at 8. Despite the MRI, CT scan and x-

14

ray reports documenting the continuing existence of his back injury, Dr. Bright claims that

15

Plaintiff’s “injuries are fine and that there are no new damages.” See id. at 5.

16

B.

17

Plaintiff claims that Officer Betancourt, Dr. Ahmed, Dr. Bright, and CMO Posson

18

have been deliberately indifferent to his serious medical needs, in violation of the Eighth

19

Amendment. He also brings a state law cause of action of professional negligence against

20

Dr. Ahmed, and alleges that Officer Betancourt has falsified a documentation report against

21

him.

22

Legal Claims

Plaintiff has not adequately pled his Eighth Amendment claims. Deliberate

23

indifference to serious medical needs violates the Eighth Amendment’s proscription against

24

cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

25

v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

26

Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination

27

of “deliberate indifference” involves an examination of two elements: the seriousness of the

28

prisoner’s medical need and the nature of the defendant’s response to that need. See
3

1

McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a

2

prisoner’s condition could result in further significant injury or the “unnecessary and wanton

3

infliction of pain.” See id. (citing Estelle, 429 U.S. at 104). A prison official is deliberately

4

indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards

5

that risk by failing to take reasonable steps to abate it; “the official must both be aware of

6

facts from which the inference could be drawn that a substantial risk of serious harm exists,

7

and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). If a

8

prison official should have been aware of the risk but was not, then the official has not

9

violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of

United States District Court
For the Northern District of California

10
11

Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and

12

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

13

8(a)(2). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

14

elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked

15

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

16

(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 557 (2007)) (alterations in

17

original). To satisfy the Rule 8 standard, a plaintiff must plead factual content that allows the

18

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

19

Id. (citing Twombly, 550 U.S. at 556).

20

Plaintiff’s Eighth Amendment claims merely recite the elements of the cause of action

21

without providing specific factual content. For example, it is unclear if and how Officer

22

Betancourt knew of Plaintiff’s medical issues. It is similarly unclear if and how Officer

23

Betancourt knew that submitting a false report would result in serious risk of harm to

24

Plaintiff’s health. In addition, Plaintiff states that Defendants “knew or should have known

25

that [their] conduct, attitudes, and actions “created an unreasonable risk of serious harm to

26

plaintiff.” Am. Compl. at 7, 9, and 10–11. As discussed above, there is no Eighth

27

Amendment violation if a prison official should have been, but was not, aware of a risk of

28

harm to a prisoner. Gibson, 290 F.3d at 1188. The defects discussed above could potentially
4

1

be cured by the allegation of additional facts. Plaintiff will therefore be given an opportunity

2

to amend his claims, if he can truthfully do so, under the standards explained above. If he

3

chooses to do so, he must provide more factual information regarding the action of the

4

Defendants.
Plaintiff’s allegation that Officer Betancourt falsely accused him of hoarding

6

morphine and other contraband is insufficient to state a federal civil rights claim. Brown v.

7

CMC, 2010 WL 2674499, *6–*7 (C.D. Cal. May 18, 2010) (“allegations of a fabricated

8

RVR, alone, do not support a cognizable due process claim”); Buckley v. Gomez, 36

9

F.Supp.2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be free from

10
United States District Court
For the Northern District of California

5

wrongfully issued disciplinary reports), aff’d without opinion, 168 F.3d 498 (9th Cir. 1999);

11

Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (prisoner’s claims based on allegedly

12

false charges do not state a constitutional claim). Allegations of a fabricated charge fail to

13

state a claim under § 1983 as long as a prisoner is afforded procedural due process in the

14

disciplinary hearing, see Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984), and the

15

false charge does not implicate another constitutional right (e.g., the First Amendment right

16

to be free of retaliation), see Smith v. Mensinger, 293 F.3d 641, 653–54 (3d Cir. 2002).

17

Plaintiff’s claim against Officer Betancourt for filing a false claim fails to state a cognizable

18

constitutional violation and is DISMISSED. However, Plaintiff will be granted leave to

19

amend this claim, if he can truthfully do so. See, e.g., McQuillion v. Schwarzenegger, 369

20

F.3d 1091, 1099 (9th Cir. 2004) (“Leave to amend should be granted unless the pleading

21

could not possibly be cured by the allegation of other facts, and should be granted more

22

liberally to pro se plaintiffs.”).

23

Plaintiff also alleges a state law claim of professional negligence against Dr. Ahmed.

24

If Plaintiff fails to amend his pleadings to state a viable federal claim, this Court will likely

25

decline to exercise supplemental jurisdiction over this claim. See 28 U.S.C. § 1367(c)(3).

26

CONCLUSION

27

For the foregoing reasons, the Court hereby orders as follows:

28

1.

Plaintiff’s complaint is DISMISSED with leave to amend.
5

1

2.

Within twenty-eight (28) days from the date of this order, Plaintiff must file an

2

amended complaint to cure the deficiencies noted above, if he truthfully can do so. If

3

Plaintiff files a second amended complaint, it should be brief. See Fed. R. Civ. P. 8(a). But

4

the second amended complaint must state what each named defendant did that led to the

5

deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678. Although accepted as

6

true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

7

speculative level . . .” Twombly, 550 U.S. at 555 (citations omitted). Plaintiff shall use the

8

court’s civil rights complaint form, a copy of which is provided herewith, and include in the

9

caption both the case number of this action, No. C 15-3476 MEJ (PR), and the heading

United States District Court
For the Northern District of California

10

“SECOND AMENDED COMPLAINT.” Failure to file the amended complaint by the

11

deadline will result in the dismissal of the action.

12

3.

Plaintiff is advised that an amended complaint supersedes the original

13

complaint. “[A] plaintiff waives all causes of action alleged in the original complaint which

14

are not alleged in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811,

15

814 (9th Cir. 1981). Plaintiff may not incorporate material from the prior complaints by

16

reference.

17

4.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

18

Court informed of any change of address by filing a separate paper with the Clerk headed

19

“Notice of Change of Address,” and 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
24

5.

The Clerk shall send Plaintiff a blank civil rights form along with his copy of

this order.
IT IS SO ORDERED.

25
26

DATED: November 13, 2015
Maria-Elena James
United States Magistrate Judge

27
28
6