Smith v. Mack et al

Filing 30

ORDER Granting 27 MOTION FOR SCREENING OF 11 First Amended Complaint; Requiring Moving Defendants to Reply to First Amended Complaint; Requiring Meet and Confer re Service; Setting Case Management Conference. Initial Case Management Conference set for 1/9/2014 02:00 PM in Courtroom 3, 3rd Floor, Oakland. Signed by Judge Phyllis J. Hamilton on 10/30/2013. (pjhlc3, COURT STAFF) (Filed on 10/30/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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No. C 13-0246 PJH
ALONZO SMITH,
Plaintiff,

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v.

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DR. R. MACK, et al.,
Defendants.

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For the Northern District of California

United States District Court

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/
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ORDER GRANTING MOTION
FOR SCREENING OF FIRST
AMENDED COMPLAINT;
REQUIRING MOVING
DEFENDANTS TO REPLY TO
FIRST AMENDED
COMPLAINT; REQUIRING
MEET AND CONFER RE
SERVICE; SETTING CASE
MANAGEMENT
CONFERENCE

Plaintiff Alonzo Smith, a state prisoner currently incarcerated at Salinas Valley State

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Prison, has filed a complaint under 42 U.S.C. § 1983. The original pro se complaint was

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dismissed with leave to amend and plaintiff, now represented, has filed a first amended

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complaint (“FAC”). Plaintiff was granted leave to proceed in forma pauperis, and has since

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paid the filing fee in full. Plaintiff’s counsel served the summons and complaint on six of the

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nine named defendants. Defendants M. Sensi, R.T.C. Grounds, V. C. Munk, G. Ellis and

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R. Mack have filed a motion for screening of the FAC pursuant to 28 U.S.C. § 1915A(a).

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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

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

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

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1915A(b)(1), (2).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of

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the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary;

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the statement need only ‘give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted). A complaint must proffer “enough facts to state a claim to relief that is

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For the Northern District of California

United States District Court

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plausible on its face.” Id. at 570. The United States Supreme Court has explained the

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“plausible on its face” standard of Twombly as follows: “While legal conclusions can provide

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the framework of a complaint, they must be supported by factual allegations. When there

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are well-pleaded factual allegations, a court should assume their veracity and then

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determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 566

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U.S. 622, 679 (2009).

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B.

Legal Claims

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Plaintiff alleges that his jaw was broken in a fight and that he was seen at A Facility

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at SVSP by defendant Wittenberg, who transferred plaintiff to the clinical treatment center

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(“CTC”) for treatment. Plaintiff spent six weeks in the CTC, during which time he was

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allegedly harassed by Correctional Officer Para and Doe defendant members of the CTC

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custody staff. At CTC, plaintiff became ill and began vomiting; Doe defendants denied

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plaintiff assistance for two days, then a nurse cut the wire holding his jaws shut to allow him

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to clear his mouth upon vomiting. His jaws were not rewired back together, and plaintiff

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was returned to his housing unit at SVSP with an order for a soft-chopped diet. Plaintiff

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alleges that after informing the infirmary staff that he could not eat regular meals, he was

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not provided a soft chopped food diet to make it easier to eat. Plaintiff alleges that he had

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difficulty eating the regular meal because of the pain caused by even slight jaw movement.
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He alleges that defendants Mack, Munk, Knorton, Wittenberg, Baker, Senisi, and Doe

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defendants refused to help him or provide the medically required diet. Plaintiff alleges that

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he has continued to suffer severe pain in his jaw, that he has not been able to eat normally,

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that his pain medication is inadequate, that he is constantly hungry, that he has lost weight,

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and that his speech has been affected. He further alleges that defendants Grounds and

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Ellis established the practice and policies by which their subordinates denied plaintiff proper

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medical care.

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C.

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Screening
In the February 13, 2013 initial screening order, the court held that the allegations

were sufficient to state a constitutional claim against defendants Dr. Munk and Dr. Mack for

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For the Northern District of California

United States District Court

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the failure to provide him a sufficient diet. However, the court dismissed the claims against

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the remaining defendants with leave to amend, except as to Canchola, for failure to link

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them to the alleged Eighth Amendment deprivation. Because plaintiff’s claims are

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governed by section 1915A, the court is required to review the FAC. It appears from the

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docket that plaintiff’s counsel obtained issuance of the summons and had service effected

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on defendants Wittenburg, M. Sensi, R.T.C. Grounds, V. C. Munk, G. Ellis and R. Mack.

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Doc. nos. 14, 17-21. Notwithstanding plaintiff’s contention that a paralegal was told by a

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clerk of the court that the screening had already been completed, the record shows that the

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court has not reviewed the claims asserted in the FAC, as required by section 1915A.

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Defendants’ request for screening is therefore GRANTED, and the court proceeds with its

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review of the FAC.

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Medical claims like the one presented by plaintiff are actionable under section 1983

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only if plaintiff is able to allege facts plausibly asserting that he was the victim of deliberate

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indifference to a serious medical need, a violation of the Eighth Amendment’s proscription

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

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

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

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determination of “deliberate indifference” involves an examination of two elements: the
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seriousness of the prisoner’s medical need and the nature of the defendant’s response to

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that need. See McGuckin, 974 F.2d at 1059.

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Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the

protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of

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Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a

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constitutional right within the meaning of section 1983 if he does an affirmative act,

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

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required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844

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F.2d at 633. The inquiry into causation must be individualized and focus on the duties and

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For the Northern District of California

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

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United States District Court

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responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused a constitutional deprivation. See Leer, 844 F.2d at 633 (citations omitted). Plaintiff

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must “set forth specific facts as to each individual defendant’s” actions which violated his

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rights. Leer, 844 F.2d at 634. At the pleading stage, “[a] plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the deprivation

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of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

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Plaintiff has sufficiently alleged a claim of deliberate indifference to a serious medical

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need against defendants Mack, Munk, Knorton, Wittenberg, Baker, and Senisi, who is

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identified by defense counsel as M. Sensi. As to defendant Para, however, the allegations

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that Para refused to allow plaintiff out for recreation or fresh air during the six weeks he was

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at CTC fails to allege a claim of deliberate indifference to a serious medical need in

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violation of his civil rights.

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Plaintiff further seeks injunctive relief against defendants Grounds, the warden of

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SVSP, and Ellis, the CEO of medical services, to direct them to provide plaintiff with

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dietary, pain relief or other ongoing care measures pursuant to an independent medical

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evaluation. Failure to provide a system of ready access to adequate medical care, failure

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to provide a medical staff competent to examine and diagnose inmates’ problems and

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failure to treat the problems or refer the inmates to others who could, for physical, dental
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and mental health problems, are violations of the Eighth Amendment. Hoptowit v. Ray, 682

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F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515

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U.S. 472 (1995). The allegations of the FAC are sufficient to state a plausible claim for

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injunctive relief against Grounds and Ellis.

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Plaintiff also seeks relief against correctional officer Para and defendant Baker for

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suppressing his written grievances and medical requests in violation of his First

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Amendment rights. There is no constitutional right to a specific prison grievance

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procedure, and the FAC fails to identify a right protected by the First Amendment. See

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640
(9th Cir. 1988). To the extent plaintiff alleges that his grievances were improperly

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For the Northern District of California

United States District Court

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suppressed, these allegations fail to state a cognizable claim.

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CONCLUSION
1.

Defendants’ motion for screening of plaintiff’s first amended complaint is

GRANTED.

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2.

Defendant Para is DISMISSED with prejudice.

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3.

Pursuant to 42 U.S.C. § 1997e(g)(2), defendants M. Sensi, R.T.C. Grounds,

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V. C. Munk, G. Ellis and R. Mack are ordered to file an answer or otherwise respond to the

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first amended complaint within twenty-one days of the date of this order.

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4.

As summonses have not yet issued for defendants Baker and Knorton,

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counsel for plaintiff and the moving defendants are directed to meet and confer as to

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whether defense counsel will waive service of summons and accept service for Baker and

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Knorton, who plaintiff alleges are employed at SVSP. If the parties do not reach an

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agreement as to service, plaintiff’s counsel may file, within twenty-one days of the date of

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this order, a request for issuance of summons and service by the United States Marshal on

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Baker and Knorton, pursuant to plaintiff’s in forma pauperis status. Alternatively, plaintiff’s

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counsel may serve the summons, a copy of the complaint with attachments and a copy of

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this order on defendants Baker and Knorton.

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An initial case management conference is set for January 9, 2014, at 2:00

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p.m., in Courtroom 3, 3rd Floor, Federal Building, 1301 Clay Street, Oakland, California.

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Counsel shall meet and confer as required by Fed. R. Civ. P. 26(f) prior to the Case

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Management Conference with respect to those subjects set forth in Fed. R. Civ. P. 16(c).

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Not less than seven (7) days before the conference, counsel shall file a joint case

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management statement addressing each of the items listed in the "Standing Order For All

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Judges Of the Northern District -- Contents of Joint Case Management Statement," which is
available on the court website. A proposed order is not necessary. Following the

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For the Northern District of California

United States District Court

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conference, the court will enter its own Case Management and Pretrial Order. If any party

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is proceeding without counsel, separate statements may be filed by each party.

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Each party shall appear personally or by counsel prepared to address all of the

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matters referred to in this Order and with authority to enter stipulations and make

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admissions pursuant to this Order. Any request to reschedule the date of the conference

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shall be made in writing, and by stipulation if possible, at least ten (10) calendar days

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before the date of the conference and must be based upon good cause.

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IT IS SO ORDERED.

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Dated: October 30, 2013
PHYLLIS J. HAMILTON
United States District Judge

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