Simril v. Paramo, et al.
Filing
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ORDER granting Plaintiff's 5 Motion for Leave to Proceed in Forma Pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b) (2). Pla's Complaint is dismissed w/o prejudice pursuant to 28 USC 1915(e)(2)(b) and 1915A(b). Pla is granted 45 days leave from the date of this Order is filed to file a First Amended Complaint. If Pla's First Amended Complaint fails to st ate a claim upon which relief may be granted, it may be dismissed w/o further leave to amend and may be counted as a strike under 28 USC 1915(g). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Gonzalo P. Curiel on 7/24/2013. (Copy of this Order mailed to Jeffrey Beard, Ph.D). (Blank First Amended 1983 Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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ANTHONY SIMRIL,
CDCR #AE-9592,
Civil No.
Plaintiff,
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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
IMPOSING NO INITIAL PARTIAL
FILING FEE, GARNISHING $350.00
BALANCE FROM PRISONER’S
TRUST ACCOUNT [ECF No. 5]; and
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vs.
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(2) DISMISSING COMPLAINT
FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b)
DANIEL PARAMO, Warden;
M. GLYNN, Chief Medical Executive Officer,
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Defendants.
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Anthony Simril (“Plaintiff”), a state prisoner currently incarcerated at the Richard J.
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Donovan Correctional Facility (“RJD”) located in San Diego, California and proceeding pro se,
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initially submitted a civil action pursuant to 42 U.S.C. § 1983 in the Northern District of
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California. [ECF No. 1.] Additionally, Plaintiff filed a Motion to Proceed In Forma Pauperis
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(“IFP”) pursuant to 28 U.S.C. § 1915(a). [ECF No. 5.] On May 20, 2013, United States District
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Judge Charles R. Breyer determined that the claims giving rise to Plaintiff’s action occurred
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while he was housed at RJD and transferred the matter to the Southern District of California.
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[ECF No. 6.]
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I.
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MOTION TO PROCEED IFP [ECF No. 5]
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All parties instituting any civil action, suit or proceeding in a district court of the United
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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee
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only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to
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proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their
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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
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844, 847 (9th Cir. 2002).
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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a
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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account
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statement (or institutional equivalent) for the prisoner for the six-month period immediately
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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,
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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial
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payment of 20% of (a) the average monthly deposits in the account for the past six months, or
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(b) the average monthly balance in the account for the past six months, whichever is greater,
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unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
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institution having custody of the prisoner must collect subsequent payments, assessed at 20%
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of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and
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forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
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§ 1915(b)(2).
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The Court finds that Plaintiff has no available funds from which to pay filing fees at this
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time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited
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from bringing a civil action or appealing a civil action or criminal judgment for the reason that
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the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor,
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281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing
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dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds
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available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion
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to Proceed IFP [ECF No. 5] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1).
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However, the entire $350 balance of the filing fees mandated shall be collected and forwarded
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to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.
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§ 1915(b)(1).
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II.
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INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)
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Notwithstanding IFP status or the payment of any partial filing fees, the Court must
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subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening
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and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a
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claim upon which relief may be granted, or seeking monetary relief from a defendant immune
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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
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2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.
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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not
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only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that
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fails to state a claim).
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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte
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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as
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amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to
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the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing
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the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at
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845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.
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1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of
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process is made on the opposing parties”).
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“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to the
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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194
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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”);
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Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s
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pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988),
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which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261
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(9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the
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court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board
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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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A.
1983 standard
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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person
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acting under color of state law committed the conduct at issue, and (2) that the conduct deprived
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the claimant of some right, privilege, or immunity protected by the Constitution or laws of the
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United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122
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(2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
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B.
Eighth Amendment claims
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Plaintiff’s Complaint is nearly devoid of any specific factual allegations. For example,
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Plaintiff claims in his Complaint that “since 4/23/13 RJDCF has denied prisoners 7 days without
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power/water/medical supplies or alternatives.” [ECF No. 4 at 10.] However, Plaintiff signed this
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Complaint only two days later so it is not clear what time frame he is referring to and whether
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this was a total denial of power, water and medical supplies. The Eighth Amendment, which
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prohibits “cruel and unusual punishments,” imposes a duty on prison officials to provide humane
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conditions of confinement and to take reasonable measures to guarantee the safety of the
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inmates. Helling v. McKinney, 509 U.S. 25, 31-33 (1993). However, every injury suffered by
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an inmate does not necessarily translate into constitutional liability for prison officials.
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Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir. 1996); Rhodes v. Chapman, 452 U.S. 337, 349
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(1981) (noting that the U.S. Constitution “does not mandate comfortable prisons.”).
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Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of
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confinement a prisoner must satisfy two requirements: one objective and one subjective.
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Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.
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1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that
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“a prison official’s acts or omissions . . . result[ed] in the denial of the ‘minimal civilized
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measure of life’s necessities.’” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347).
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This objective component is satisfied so long as the institution “furnishes sentenced prisoners
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with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit
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v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534; Wright v. Rushen, 642
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F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant’s state
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of mind, requires that the plaintiff allege facts sufficient to show “deliberate indifference.”
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Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official “knows of and
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disregards an excessive risk to inmate health and safety; the official must be both aware of facts
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from which the inference could be drawn that a substantial risk of serious harm exists, and he
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must also draw the inference.” Farmer, 511 U.S. at 837.
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As currently pleaded, the Court finds that Plaintiff has failed to allege sufficient facts
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from which the Court could find that he has stated a claim to show that the conditions of
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confinement were objectively and demonstrably unsafe, and further fails to allege facts which
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show that any of the named Defendants were actually aware and consciously disregarded the risk
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posed. See Helling, 509 U.S. at 36 (exposure to demonstrably unsafe conditions may violate the
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Eighth Amendment if the inmate can show that the risk he faced was “so grave that it violates
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contemporary standards of decency”); Farmer, 511 U.S. at 828-29 (deliberate indifference
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requires a showing that specific prison officials were “subjectively aware of the risk”).
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Accordingly, Plaintiff’s Eighth Amendment claims are dismissed for failing to state a
claim upon which § 1983 relief can be granted.
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While Plaintiff’s Complaint lacks sufficient factual allegations, in the letter to the Court
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filed on April 19, 2013, he alleged that he was having “problems with the medical Department
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giving me adequate supplies for dressings, catheter and colostomy supplies.” [ECF No. 1.]
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Where an inmate’s claim is one of inadequate medical care, the inmate must allege “acts or
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omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
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Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: “the seriousness
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of the prisoner’s medical need and the nature of the defendant’s response to that need.”
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX
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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is serious “if the
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failure to treat the prisoner’s condition could result in further significant injury or the
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‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429
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U.S. at 104). Indications of a serious medical need include “the presence of a medical condition
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that significantly affects an individual’s daily activities.” Id. at 1059-60. By establishing the
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existence of a serious medical need, an inmate satisfies the objective requirement for proving
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an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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In general, deliberate indifference may be shown when prison officials deny, delay, or
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intentionally interfere with a prescribed course of medical treatment, or it may be shown by the
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way in which prison medical officials provide necessary care. Hutchinson v. United States, 838
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F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate’s civil rights have been
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abridged with regard to medical care, however, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing
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Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
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Here, Plaintiff’s Complaint contains no factual allegations from which any of the named
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Defendants could be found to be deliberately indifferent to his serious medical needs. Thus,
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Plaintiff’s Eighth Amendment inadequate medical care claims are dismissed for failing to state
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a claim upon which relief can be granted.
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C.
Respondeat Superior claims
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In addition, to the extent Plaintiff seeks to sue Defendants based merely on their
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supervisory positions, such allegations are insufficient to state a claim against these Defendants
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because there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson,
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9 F.3d 1433, 1437-38 (9th Cir. 1993).
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individualized and focus on the duties and responsibilities of each individual defendant whose
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Instead, “[t]he inquiry into causation must be
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acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844
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F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order
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to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual
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Defendant which have a direct causal connection to the constitutional violation at issue. See
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Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th
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Cir. 1989).
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Supervisory prison officials may only be held liable for the allegedly unconstitutional
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violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what
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extent they personally participated in or directed a subordinate’s actions, and (2) in either acting
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or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s
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constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded,
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however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to
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support an individualized constitutional claim against any of the named Defendants.
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III.
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CONCLUSION AND ORDER
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Good cause appearing, IT IS HEREBY ORDERED that:
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1.
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is GRANTED.
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2.
Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 5]
The Secretary of California Department of Corrections and Rehabilitation, or his
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designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee
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owed in this case by collecting monthly payments from the account in an amount equal to twenty
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percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court
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each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION.
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3.
The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard,
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Ph.D., Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite
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502, Sacramento, California 95814.
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IT IS FURTHER ORDERED that:
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4.
Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.
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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave
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from the date this Order is “Filed” in which to file a First Amended Complaint which cures all
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the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in
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itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants
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not named and all claims not re-alleged in the Amended Complaint will be deemed to have been
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waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended
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Complaint fails to state a claim upon which relief may be granted, it may be dismissed without
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further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g).
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See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
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5.
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Plaintiff.
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The Clerk of Court is directed to mail a court approved §1983 complaint form to
IT IS SO ORDERED.
DATED: July 24, 2013
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HON. GONZALO P. CURIEL
United States District Judge
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