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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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JEFFREY ALAN FRALICK,
Plaintiff,

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No. C 15-4949 NC (PR)

v.
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

WARDEN SPEARMAN, et al.,

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Defendants.
/

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Plaintiff Jeffrey Alan Fralick, a California state prisoner proceeding pro se, filed a

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civil rights action under 42 U.S.C. § 1983.1 Plaintiff is granted leave to proceed in forma

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pauperis in a separate order. For the reasons stated below, the complaint is dismissed with

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leave to amend.

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DISCUSSION
I.

Standard of Review

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

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prisoner seeks redress from a governmental entity or officer or 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,

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

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

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28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v.
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Plaintiff has consented to magistrate judge jurisdiction. (Compl. at 15.)

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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

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

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

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

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . .

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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

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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

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible

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on its face.” Id. at 570.

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

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a 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

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

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

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

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II.

Legal Claim

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In general, Plaintiff alleges that at the Correctional Training Facility (“CTF”) where

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he is housed, he is required to wait in long lines to receive his medication pills. Those lines

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are in the open yards with no shaded areas, and Plaintiff is forced to be in the “harmful sun”

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in order to receive his medication, sometimes for over an hour at a time.

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Plaintiff further alleges that, on January 22, 2014, he was seen by Dr. Kalisher to

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examine a lump on his nose. Dr. Kalisher prescribed zinc oxide ointment for sun protection.

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A dermatologist removed lesions from Plaintiff’s nose and ear for biopsy, and it was

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determined that the lesions showed a precancerous condition called actinic keratoses.

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Between July 1, 2015, and September 16, 2015, Dr. Kalisher treated the precancerous sites
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four times by using cryosurgery treatments. As a result, while the treatment ultimately was

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successful, Plaintiff suffers from large scarring on his nose.

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Plaintiff claims that defendants Warden Spearman, Chief Medical Executive Dr.

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Bright, and Chief Medical Executive Dr. Poggins were deliberately indifferent to his health

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for failing to provide shaded areas while inmates wait in the pill line. Plaintiff also claims

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that Dr. Kalisher was deliberately indifferent to his medical needs by prescribing zinc oxide,

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and by attempting four cryosurgery treatments which resulted in a scarred nose.
Plaintiff’s complaint contains several deficiencies.

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First, as to Warden Spearman, “In a § 1983 or a Bivens action - where masters do not

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United States District Court
For the Northern District of California

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answer for the torts of their servants - the term ‘supervisory liability’ is a misnomer. Absent

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vicarious liability, each Government official, his or her title notwithstanding, is only liable

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for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor

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may be liable under Section 1983 upon a showing of (1) personal involvement in the

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constitutional deprivation or (2) a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation. See Henry A. v. Willden, 678 F.3d 991,

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1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).

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Supervisor liability is established by showing the supervisor’s knowing acquiescence to

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Eighth Amendment violations that are based upon deliberate indifference. See Oregon State

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University Student Alliance v. Ray, 699 F.3d 1053, 1074-75 & n.18 (9th Cir. 2012). It is

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insufficient for a plaintiff only to allege that supervisors knew about the constitutional

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violation, and that they generally created policies and procedures that led to the violation,

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without alleging “a specific policy” or “a specific event” instigated by them that led to the

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constitutional violations. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012)

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(emphasis in original). Here, there is no allegation that Warden Spearmen was personally

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involved, or that he knew of Plaintiff’s concern and did nothing about it. Plaintiff’s general

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and conclusory statements to the contrary are insufficient to state a claim for relief that is

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plausible on its face. See Twombly, 550 U.S. at 553-56. Accordingly, Warden Spearman is

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DISMISSED.
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Second, as to defendants Chief Medical Executive Dr. Bright and Dr. Poggins,

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

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can show that the defendant’s actions both actually and proximately caused the deprivation

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of a federally protected right. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726

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F.3d 1062, 1085 (9th Cir. 2013). “The inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or omissions

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are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633

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(9th Cir. 1988). Plaintiff has not alleged, nor can a reasonable inference be made, that as

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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

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provide shaded areas to prison facilities. In addition, there is no evidence that Drs. Bright or

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Poggins were personally involved or connected to the absence of shaded areas. See, e.g.,

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Edgerly v. City and County of San Francisco, 599 F. 3d 946, 961-62 (9th Cir. 2010) (no

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policy-based supervisory liability for police sergeant who was responsible for day-to-day

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operations at the station when he was on duty, and who provided only informal training to

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officers by responding to questions, but did not set station policy and instead was required to

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enforce the rules and regulations set forth by his supervising captain and other higher-ranking

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officers); id. at 961 (no liability for supervisor based on personal involvement because

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evidence showed he was not aware of arrest or search until after they were completed and he

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authorized officers to cite and release plaintiff). Accordingly, Drs. Bright and Poggins are

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DISMISSED.

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Finally, with respect to defendant Dr. Kalisher, in order to state a claim that a

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defendant was deliberately indifferent to his serious medical needs, Plaintiff must allege that:

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(1) he had a serious medical need, and (2) the defendant knew that Plaintiff faced a

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substantial risk of serious harm, and disregarded that risk by failing to take reasonable steps

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to abate it, see Farmer v. Brennan, 511 U.S. 825, 837 (1994). See McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v.

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Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is deliberately

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indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards
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that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825,

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837 (1994). The prison official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,” but he “must also draw the

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inference.” Id. If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk. See Gibson

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v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

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Here, Plaintiff complains that zinc oxide was not a sufficient sun protectant.

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However, the responses to Plaintiff’s 602 grievance provide that zinc oxide ointment is a

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“formulary drug approved for use as sunscreen by the US Food and Drug Administration.”

United States District Court
For the Northern District of California

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(Compl., Ex. A-7.) It is well-established that “[a] difference of opinion between a prisoner-patient

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and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a

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difference of medical opinion as to the need to pursue one course of treatment over another is

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insufficient, as a matter of law, to establish deliberate indifference. See Toguchi v.Chung,

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391 F.3d 1051, 1059-60 (9th Cir. 2004). Here, at most, Plaintiff alleges a difference of

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medical opinion. In addition, Plaintiff’s allegation that Dr. Kalisher’s four attempts at

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cryosurgery treatment resulted in large scarring alleges, at most, negligence, which is

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insufficient to make out a violation of the Eighth Amendment. See id. at 1060-61.

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Accordingly, Plaintiff’s claim against Dr. Kalisher is DISMISSED.

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To the extent Plaintiff is attempting to raise a procedural due process claim, it is

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DISMISSED. Interests that are procedurally protected by the Due Process Clause may arise

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from two sources - the Due Process Clause itself and laws of the states. See Meachum v.

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Fano, 427 U.S. 215, 223-27 (1976). In the prison context, these interests are generally ones

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pertaining to liberty. A court presented with a procedural due process claim by a prisoner

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should first ask whether the alleged deprivation is one so severe that it implicates the Due

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Process Clause itself or one less severe that implicates an interest created by state statute or

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regulation. If it implicates neither, no procedural due process claim is stated. If it implicates

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the Clause itself, the court must determine what process is due. Here, Plaintiff’s claim lends
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more to an allegation that his constitutional right to health and safety were compromised.

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Plaintiff does not allege that he was deprived of any liberty interest.

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As the complaint currently reads, Plaintiff has not stated a cognizable claim against

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any defendant. However, district courts must afford pro se prisoner litigants an opportunity

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to amend to correct any deficiency in their complaints. See Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc). If Plaintiff believes that he can cure the deficiencies

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addressed above, he may amend his complaint to do so.

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CONCLUSION

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1.

The complaint is DISMISSED with leave to amend. If Plaintiff believes he can

United States District Court
For the Northern District of California

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cure the above-mentioned deficiencies in good faith, he must file an amended complaint

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within twenty-eight days from the date this order is filed. The amended complaint must

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include the caption and civil case number used in this order (C 15-4949 NC (PR)) and the

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words AMENDED COMPLAINT on the first page. Failure to file an amended complaint

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within twenty-eight days and in accordance with this order may result in the dismissal

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of this case. The Clerk of the Court is directed to send Plaintiff a blank civil rights form

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along with his copy of this order.

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2.

Plaintiff is advised that an amended complaint supersedes the original

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

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

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814 (9th Cir. 1981).

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3.

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

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

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“Notice of Change of Address,” and must comply with the court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED:

January 7, 2016

NATHANAEL M. COUSINS
United States Magistrate Judge

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United States District Court
For the Northern District of California

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