Fralick v. Spearman et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Nathanael Cousins on 1/7/2016. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 1/7/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 JEFFREY ALAN FRALICK, Plaintiff, 13 14 No. C 15-4949 NC (PR) v. ORDER OF DISMISSAL WITH LEAVE TO AMEND WARDEN SPEARMAN, et al., 15 Defendants. / 16 17 Plaintiff Jeffrey Alan Fralick, a California state prisoner proceeding pro se, filed a 18 civil rights action under 42 U.S.C. § 1983.1 Plaintiff is granted leave to proceed in forma 19 pauperis in a separate order. For the reasons stated below, the complaint is dismissed with 20 leave to amend. 21 22 DISCUSSION I. Standard of Review 23 A federal court must engage in a preliminary screening of any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a governmental 25 entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, 26 and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 27 may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. 1 Plaintiff has consented to magistrate judge jurisdiction. (Compl. at 15.) 1 Pacifica Police 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 2 3 the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 4 statement need only ‘give the defendant fair notice of what the . . . . claim is and the grounds 5 upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 6 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . 7 a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 8 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 9 will not do. . . . Factual allegations must be enough to raise a right to relief above the United States District Court For the Northern District of California 10 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 11 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible 12 on its face.” Id. at 570. 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that 14 a right secured by the Constitution or laws of the United States was violated and (2) that the 15 violation was committed by a person acting under the color of state law. West v. Atkins, 487 16 U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under § 1983 if the 17 plaintiff can show that the defendant proximately caused the deprivation of a federally 18 protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 19 II. Legal Claim 20 In general, Plaintiff alleges that at the Correctional Training Facility (“CTF”) where 21 he is housed, he is required to wait in long lines to receive his medication pills. Those lines 22 are in the open yards with no shaded areas, and Plaintiff is forced to be in the “harmful sun” 23 in order to receive his medication, sometimes for over an hour at a time. 24 Plaintiff further alleges that, on January 22, 2014, he was seen by Dr. Kalisher to 25 examine a lump on his nose. Dr. Kalisher prescribed zinc oxide ointment for sun protection. 26 A dermatologist removed lesions from Plaintiff’s nose and ear for biopsy, and it was 27 determined that the lesions showed a precancerous condition called actinic keratoses. 28 Between July 1, 2015, and September 16, 2015, Dr. Kalisher treated the precancerous sites 2 1 four times by using cryosurgery treatments. As a result, while the treatment ultimately was 2 successful, Plaintiff suffers from large scarring on his nose. 3 Plaintiff claims that defendants Warden Spearman, Chief Medical Executive Dr. 4 Bright, and Chief Medical Executive Dr. Poggins were deliberately indifferent to his health 5 for failing to provide shaded areas while inmates wait in the pill line. Plaintiff also claims 6 that Dr. Kalisher was deliberately indifferent to his medical needs by prescribing zinc oxide, 7 and by attempting four cryosurgery treatments which resulted in a scarred nose. Plaintiff’s complaint contains several deficiencies. 9 First, as to Warden Spearman, “In a § 1983 or a Bivens action - where masters do not 10 United States District Court For the Northern District of California 8 answer for the torts of their servants - the term ‘supervisory liability’ is a misnomer. Absent 11 vicarious liability, each Government official, his or her title notwithstanding, is only liable 12 for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor 13 may be liable under Section 1983 upon a showing of (1) personal involvement in the 14 constitutional deprivation or (2) a sufficient causal connection between the supervisor’s 15 wrongful conduct and the constitutional violation. See Henry A. v. Willden, 678 F.3d 991, 16 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). 17 Supervisor liability is established by showing the supervisor’s knowing acquiescence to 18 Eighth Amendment violations that are based upon deliberate indifference. See Oregon State 19 University Student Alliance v. Ray, 699 F.3d 1053, 1074-75 & n.18 (9th Cir. 2012). It is 20 insufficient for a plaintiff only to allege that supervisors knew about the constitutional 21 violation, and that they generally created policies and procedures that led to the violation, 22 without alleging “a specific policy” or “a specific event” instigated by them that led to the 23 constitutional violations. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) 24 (emphasis in original). Here, there is no allegation that Warden Spearmen was personally 25 involved, or that he knew of Plaintiff’s concern and did nothing about it. Plaintiff’s general 26 and conclusory statements to the contrary are insufficient to state a claim for relief that is 27 plausible on its face. See Twombly, 550 U.S. at 553-56. Accordingly, Warden Spearman is 28 DISMISSED. 3 1 Second, as to defendants Chief Medical Executive Dr. Bright and Dr. Poggins, 2 liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff 3 can show that the defendant’s actions both actually and proximately caused the deprivation 4 of a federally protected right. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 5 F.3d 1062, 1085 (9th Cir. 2013). “The inquiry into causation must be individualized and 6 focus on the duties and responsibilities of each individual defendant whose acts or omissions 7 are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 8 (9th Cir. 1988). Plaintiff has not alleged, nor can a reasonable inference be made, that as 9 Chief Medical Examiner, Dr. Bright or Dr. Poggins had either the duty or responsibility to United States District Court For the Northern District of California 10 provide shaded areas to prison facilities. In addition, there is no evidence that Drs. Bright or 11 Poggins were personally involved or connected to the absence of shaded areas. See, e.g., 12 Edgerly v. City and County of San Francisco, 599 F. 3d 946, 961-62 (9th Cir. 2010) (no 13 policy-based supervisory liability for police sergeant who was responsible for day-to-day 14 operations at the station when he was on duty, and who provided only informal training to 15 officers by responding to questions, but did not set station policy and instead was required to 16 enforce the rules and regulations set forth by his supervising captain and other higher-ranking 17 officers); id. at 961 (no liability for supervisor based on personal involvement because 18 evidence showed he was not aware of arrest or search until after they were completed and he 19 authorized officers to cite and release plaintiff). Accordingly, Drs. Bright and Poggins are 20 DISMISSED. 21 Finally, with respect to defendant Dr. Kalisher, in order to state a claim that a 22 defendant was deliberately indifferent to his serious medical needs, Plaintiff must allege that: 23 (1) he had a serious medical need, and (2) the defendant knew that Plaintiff faced a 24 substantial risk of serious harm, and disregarded that risk by failing to take reasonable steps 25 to abate it, see Farmer v. Brennan, 511 U.S. 825, 837 (1994). See McGuckin v. Smith, 974 26 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. 27 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is deliberately 28 indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards 4 1 that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 2 837 (1994). The prison official must not only “be aware of facts from which the inference 3 could be drawn that a substantial risk of serious harm exists,” but he “must also draw the 4 inference.” Id. If a prison official should have been aware of the risk, but was not, then the 5 official has not violated the Eighth Amendment, no matter how severe the risk. See Gibson 6 v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 7 Here, Plaintiff complains that zinc oxide was not a sufficient sun protectant. 8 However, the responses to Plaintiff’s 602 grievance provide that zinc oxide ointment is a 9 “formulary drug approved for use as sunscreen by the US Food and Drug Administration.” United States District Court For the Northern District of California 10 (Compl., Ex. A-7.) It is well-established that “[a] difference of opinion between a prisoner-patient 11 and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. 12 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a 13 difference of medical opinion as to the need to pursue one course of treatment over another is 14 insufficient, as a matter of law, to establish deliberate indifference. See Toguchi v.Chung, 15 391 F.3d 1051, 1059-60 (9th Cir. 2004). Here, at most, Plaintiff alleges a difference of 16 medical opinion. In addition, Plaintiff’s allegation that Dr. Kalisher’s four attempts at 17 cryosurgery treatment resulted in large scarring alleges, at most, negligence, which is 18 insufficient to make out a violation of the Eighth Amendment. See id. at 1060-61. 19 Accordingly, Plaintiff’s claim against Dr. Kalisher is DISMISSED. 20 To the extent Plaintiff is attempting to raise a procedural due process claim, it is 21 DISMISSED. Interests that are procedurally protected by the Due Process Clause may arise 22 from two sources - the Due Process Clause itself and laws of the states. See Meachum v. 23 Fano, 427 U.S. 215, 223-27 (1976). In the prison context, these interests are generally ones 24 pertaining to liberty. A court presented with a procedural due process claim by a prisoner 25 should first ask whether the alleged deprivation is one so severe that it implicates the Due 26 Process Clause itself or one less severe that implicates an interest created by state statute or 27 regulation. If it implicates neither, no procedural due process claim is stated. If it implicates 28 the Clause itself, the court must determine what process is due. Here, Plaintiff’s claim lends 5 1 more to an allegation that his constitutional right to health and safety were compromised. 2 Plaintiff does not allege that he was deprived of any liberty interest. 3 As the complaint currently reads, Plaintiff has not stated a cognizable claim against 4 any defendant. However, district courts must afford pro se prisoner litigants an opportunity 5 to amend to correct any deficiency in their complaints. See Lopez v. Smith, 203 F.3d 1122, 6 1126-27 (9th Cir. 2000) (en banc). If Plaintiff believes that he can cure the deficiencies 7 addressed above, he may amend his complaint to do so. 8 CONCLUSION 9 1. The complaint is DISMISSED with leave to amend. If Plaintiff believes he can United States District Court For the Northern District of California 10 cure the above-mentioned deficiencies in good faith, he must file an amended complaint 11 within twenty-eight days from the date this order is filed. The amended complaint must 12 include the caption and civil case number used in this order (C 15-4949 NC (PR)) and the 13 words AMENDED COMPLAINT on the first page. Failure to file an amended complaint 14 within twenty-eight days and in accordance with this order may result in the dismissal 15 of this case. The Clerk of the Court is directed to send Plaintiff a blank civil rights form 16 along with his copy of this order. 17 2. Plaintiff is advised that an amended complaint supersedes the original 18 complaint. “[A] plaintiff waives all causes of action alleged in the original complaint which 19 are not alleged in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 20 814 (9th Cir. 1981). 21 3. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 22 Court informed of any change of address by filing a separate paper with the Clerk headed 23 “Notice of Change of Address,” and must comply with the court’s orders in a timely fashion. 24 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 25 Federal Rule of Civil Procedure 41(b). 26 27 28 6 1 IT IS SO ORDERED. 2 3 DATED: January 7, 2016 NATHANAEL M. COUSINS United States Magistrate Judge 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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