Bonty v. Kuman et al
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. OF DISMISSAL WITH LEAVE TO AMEND; DENYING 8 MOTION FOR APPOINTMENT OF COUNSEL. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 9/29/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MILES ORLONDO BONTY,
Plaintiff,
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United States District Court
Northern District of California
ORDER OF DISMISSAL WITH LEAVE
TO AMEND; DENYING MOTION FOR
APPOINTMENT OF COUNSEL
v.
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Case No. 17-cv-03516-HSG (PR)
K. KUMAR, et al.,
Re: Dkt. No. 8
Defendants.
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INTRODUCTION
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Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), proceeding pro se, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 against SVSP medical staff, alleging deliberate
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indifference to serious medical needs. He is granted leave to proceed in forma pauperis in a
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separate order. Based upon a review of the complaint pursuant to 28 U.S.C. § 1915A, it is
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dismissed with leave to amend.
ANALYSIS
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A.
Standard of Review
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A federal court must engage in a preliminary screening of any case in which a prisoner
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seeks redress from a governmental entity, or from an officer or an employee of a governmental
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entity. 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 be
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granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
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§ 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not
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necessary; 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 omitted).
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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must
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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a
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United States District Court
Northern District of California
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right secured by the Constitution or laws of the United States was violated; and (2) that the
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violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
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42, 48 (1988).
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B.
Legal Claims
According to the complaint, plaintiff was involved in a serious automobile accident in
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1981, leaving him with long-term gradual severe degenerative disease. In June 2010, SVSP
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medical staff were put on notice of plaintiff’s condition. SVSP medical staff also “knew that this
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particular diagnosis required morphine treatment to relieve severe chronic pain.” Compl. at 8.1
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Despite this knowledge, SVSP medical staff defendants involuntarily placed plaintiff in the
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California Prison Health Care Services Pain Management Program, where he did not receive
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morphine. From December 12, 2015 through May 6, 2016, defendants provided plaintiff with
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alternative medication that worsened plaintiff’s condition to the point where he became immobile.
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Given plaintiff’s adverse reaction to the alternative medication, defendants resumed his morphine
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treatment.
Plaintiff alleges an Eighth Amendment claim for deliberate indifference to serious medical
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needs and also requests that the court take supplemental jurisdiction over state law claims. He
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References to pages for plaintiff’s filings are to the page numbers that are automatically assigned
by the Court’s electronic filing system and appear in the upper right-hand corner of the page.
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names the following individuals as defendants: chief medical executive K. Kumar, chief physician
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and surgeon Lawrence Gamboa, physician and surgeon J. Chudy, physician and surgeon Carl
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Bourne, osteopath Edward M. Birdsong, primary care provider Jennifer Villafuerte, and primary
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care provider Claudine Marie Lott.
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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth
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Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050,
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1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d
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1133, 1136 (9th Cir. 1997) (en banc). A prison official violates the Eighth Amendment only when
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two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and
(2) the official is, subjectively, deliberately indifferent to the inmate’s health or safety. Farmer v.
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United States District Court
Northern District of California
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Brennan, 511 U.S. 825, 834 (1994). A “serious” medical need exists if the failure to treat a
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prisoner’s condition could result in further significant injury or the “unnecessary and wanton
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infliction of pain.” McGuckin, 974 F.2d at 1059.
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A prison official is deliberately indifferent if she or he knows that a prisoner faces a
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substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate
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it. Farmer, 511 U.S. at 837. The prison official must not only “be aware of facts from which the
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inference could be drawn that a substantial risk of serious harm exists,” but he or she “must also
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draw the inference.” Id. “Prison officials are deliberately indifferent to a prisoner’s serious
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medical needs when they deny, delay, or intentionally interfere with medical treatment. . . . Mere
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negligence in diagnosing or treating a medical condition, without more, does not violate a
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prisoner’s Eighth Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
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(citation omitted); see Farmer, 511 U.S. at 835-36 & n.4 (recognizing that neither negligence nor
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gross negligence will constitute deliberate indifference).
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Plaintiff’s allegations that he suffered from a severe degenerative condition and associated
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chronic pain establish that he had a serious medical need. The complaint, however, fails to satisfy
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the subjective prong of an Eighth Amendment claim in that it does not allege facts suggestive of
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deliberate indifference by prison officials to a known risk to plaintiff’s health or safety. Plaintiff’s
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vague and conclusory allegations regarding the failure to provide morphine treatment amount, at
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most, to negligence, which is insufficient to state an Eighth Amendment claim. Estelle, 429 U.S.
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at 106 (negligence in treating medical condition does not state valid Eighth Amendment claim).
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Further, the complaint does not sufficiently link any named defendant to this claim. Therefore, the
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Eighth Amendment claim is dismissed. Dismissal is with leave to amend for plaintiff to add
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allegations that show defendants knew about plaintiff’s serious medical need and deliberately
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prevented plaintiff from receiving necessary medical care.
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If plaintiff wants to plead one or more state law claims against defendants, he must identify
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and allege the particular state law claim(s), and should allege that he is suing for relief under 28
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U.S.C. § 1367 (the supplemental jurisdiction provision) as well as under 42 U.S.C. § 1983 (the
civil rights statute that gives the Court federal question jurisdiction over the case). If plaintiff fails
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United States District Court
Northern District of California
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to amend his pleadings to state a viable federal claim, this Court likely will decline to exercise
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supplemental jurisdiction over the remaining state law claim(s). See 28 U.S.C. § 1367(c)(3).
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In his amended complaint, plaintiff must specifically identify what each named defendant
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did or did not do with regard to each separate claim. Sweeping conclusory allegations will not
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suffice. Plaintiff should not refer to the defendants as a group (e.g., “the defendants”); rather, he
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should identify each involved defendant by name and link each of them to his claims by
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explaining what each involved defendant did or failed to do that caused a violation of his rights.
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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). The complaint need not be long. In fact, a
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brief and clear statement with regard to each claim listing each defendant’s actions regarding that
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claim is preferable.
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The Court notes that plaintiff also complains that he was denied his right of access to the
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courts when a separate SVSP official—not a named defendant—failed to deliver plaintiff’s civil
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tort state action to the Monterey County Superior Court. Plaintiff is advised that he may only
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allege claims in a single action that (a) arise out of the same transaction, occurrence, or series of
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transactions or occurrences and (b) present questions of law or fact common to all defendants
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named therein. See Fed. R. Civ. P. 20(a)(2). Because plaintiff’s access to courts claim is an
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unrelated claim against an individual unrelated to the named defendants, plaintiff must file a
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separate action for the claim. He also must either pay the $350.00 filing fee, or file a completed
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court- approved in forma pauperis application, for each separately-filed action. See 28 U.S.C.
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§ 1915.
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C.
Motion for Appointment of Counsel
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Plaintiff’s motion for appointment of counsel is DENIED for want of exceptional
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circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); see also Lassiter v.
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Dep’t of Social Services, 452 U.S. 18, 25 (1981) (there is no constitutional right to counsel in a
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civil case). This denial is without prejudice to the Court’s sua sponte appointment of counsel at a
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future date should the circumstances of this case warrant such appointment.
CONCLUSION
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United States District Court
Northern District of California
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1.
Plaintiff’s complaint is DISMISSED with leave to amend. Plaintiff’s motion for
appointment of counsel is DENIED without prejudice.
2.
If plaintiff believes he can state a cognizable claim for relief, he shall file an
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AMENDED COMPLAINT within thirty (30) days from the date this order is filed. The amended
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complaint must include the caption and civil case number used in this order (C 17-3516 HSG
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(PR)) and the words AMENDED COMPLAINT on the first page. If plaintiff files an amended
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complaint, he must allege, in good faith, facts—not merely conclusions of law—that demonstrate
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that he is entitled to relief under the applicable federal laws. Failure to file a proper amended
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complaint in the time provided will result in the dismissal of this action without further
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notice to plaintiff.
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3.
Plaintiff is advised that an amended complaint supersedes the original complaint.
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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged in
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the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).
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Defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet,
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963 F.2d 1258, 1262 (9th Cir. 1992).
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4.
It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court
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informed of any change of address by filing a separate paper with the Clerk headed “Notice of
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Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so
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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil
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Procedure 41(b).
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5.
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The Clerk shall send plaintiff two blank civil rights forms along with his copy of
this order.
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This order terminates Docket No. 8.
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IT IS SO ORDERED.
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Dated: 9/29/2017
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HAYWOOD S. GILLIAM, JR.
United States District Judge
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United States District Court
Northern District of California
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