Asberry v. Cate et al

Filing 15

ORDER: (1) Re-Opening Civil Action, (2) Granting Plaintiff's Motion To Proceed In Forma Pauperis (Re Doc. 10 ), And (3) Sua Sponte Dismissing Complaint Without Prejudice For Failing To State A Claim Pursuant To 28 U.S.C. Section 1915(e)(2) And 1915A(b): The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust account the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to 20% of the preceding month&# 039;s income 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). Plaintiff is granted forty five (45) days leave in which to file a First Amended Complaint which cu res all the deficiencies of pleading. Should Plaintiff fail to file an Amended Complaint within the time provided, the Court shall enter a final order dismissing this civil action without prejudice based on Plaintiff's failure to state a claim u pon which re1ief can be granted pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Signed by Judge William Q. Hayes on 4/17/2014. (All non-registered users served via U.S. Mail Service; Order electronically transmitted to Secretary of CDC R; per Order, a copy also was mailed to Secretary of CDCR.) (mdc) Modified on 4/22/2014 - Notified appeals clerk re this filing. (mdc) Modified on 4/22/2014 to note that the Order has been electronically transmitted to the US Court of Appeals via regenerated NEF. The USCA Case Number is 14-55476. (akr).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,
CDCR #P-63853,

Civil No.

Plaintiff,

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vs.

(2) GRANTING PLAINTIFF'S
MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF Doc. No. 10)

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ORDER:
(1) RE-OPENING CIVIL
ACTION

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13cv2573 WQH (RBB)

MATTHEW CATE I Secretary;
D. PARAMO, Waraen; WAUZER
Medical Doct~ri SILVA, Medical boctor;
DENBELLA, Medical Doctor; CHOW,
Medical Doctor NEWTON Medical
Doctor; and JOHN DOE, Medical Doctor,
Defendants.

AND
SUA SPONTE DISMISSING
COMPLAINT WITHOUT
PREJUDICE FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)
AND 1915A(bJ
(2)

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Tony Asberry ("Plaintiff'), an inmate currently incarcerated at Richard J. Donovan

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Correctional Facility ("RJD") in San Diego, California, and proceeding pro se, has filed

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a civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff alleges prison officials at RJD have provided him with inadequate

27 medical treatment in violation ofthe Eighth Amendment since he was transferred there
28 in March 2012. See CompI. (ECF Doc. No.1) at 4-14. Plaintiff further alleges that he
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13cv2573 WQH (RBB)

1 "believes ... RJD officials are [acting in] retaliation" for a previously-filed civil action
2 and "602s." Id. at 14. Plaintiff seeks general and punitive damages as well as injunctive
3

relief in the form of a court order directing Defendants to return his wheelchair. Id. at

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17.

5 I.

PROCEDURAL HISTORY

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After he was denied leave to proceed in forma pauperis ("IFP") pursuant to 28

7 U.S.C. § 1915(a) without prejudice on January 2,2014, due to his failure to provide the
8 trust account certificates required by § 1915(a)(2), and was granted 45 days in which to
9 either file a new properly-supported IFP or to prepay the civil filing fee required by 29
10 U.S.C. § 1914 in its entirety (ECF Doc. No.7), Plaintiff submitted a new Motion to
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Proceed IFP, dated February 13,2014, and filed on February 19,2014, which still fails

12 to include the trust account documentation required by statute (ECF Doc. No. 10).
13

Plaintiff contends he has submitted a request for the certified copies of his trust account

14 statements to prison officials at RJD twice to no avail, and "believe that there is a
15 coordinated effort ... to block [his] efforts," and "undermine [his] rights to challenge the
16 conditions of his confinement." (Id. at 6.)
17

However, before the Court had a chance to consider his latest IFP Motion, Plaintiff

18 submitted another document to the Clerk on March 20, 2014, which repeated his
19 allegations of obstruction by RJD trust account officials, and concluded with a "request
20 to appeal to the Ninth Circuit Court of Appeals." See ECF Doc. No. 11 at 3-4.
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On April 15, 2014, the Ninth Circuit issued an Order remanding Plaintiffs Notice

22 of Appeal "for the limited purpose of enabling the district court to consider whether, in
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light of [Plaintiffs] February 19,2014 motion to proceed in forma pauperis, the district

24 court would reopen the action or whether [Plaintiffs] filing raises a substantial issue
25 pursuant to Federal Rule of Appellate Procedure 12.1 (b ).,,1 See Asberry v. Cate, et a!.,
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1 Federal Rule of Appellate Procedure 12.1 governs "remand[ s] after an indicative ruling
by the district court on motIOn for relief that is barred by a pending appeal" and provides that
"Li]fthe district court states that it would grant the motion or that the motion raises a substantial
issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it
expressly dismisses the appeal." FED.R.App.P. 12.1 (b). "If the court of appeals remands but
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13cv2573 WQH (RBB)

19th Cir. No. 14-55476 (April 15, 2014 Order) (ECF Doc. No. 14) at *2. Thus, because
2 the Ninth Circuit has remanded the matter for "an indicative ruling," this Court now has
3 jurisdiction to determine whether the case may be re-opened in light of Plaintiff's
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February 19,2014 Motion to Proceed IFP.

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II.

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INDICATIVE RULING AS TO PLAINTIFF'S RENEWED MOTION TO PROCEED IFP

As Plaintiff is aware, all parties instituting any civil action, suit or proceeding in

7 a district court ofthe United States, except an application for writ of habeas corpus, must
8 pay a filing fee. See 28 U.S.C. § 1914(a).2 An action may proceed despite the plaintiff's
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failure to prepay the entire fee only ifhe is granted leave to proceed IFP pursuant to 28

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U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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However, if the plaintiff is a prisoner and is granted leave to proceed IFP, he

12 nevertheless remains obligated to pay the entire fee in installments, regardless ofwhether
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his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(I) & (2); Taylor v.

14 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
15

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

16 ("PLRA"), a prisoner seeking leave to proceed IFP must also submit a "certified copy
17 of the trust fund account statement (or institutional equivalent) for ... the six-month
18 period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2);

19 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified trust
20 account statement, that the Court must assess an initial payment of 20% of (a) the
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average monthly deposits in the account for the past six months, or (b) the average

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23 retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has
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decided the motion on remand." Id.; see also FED.R.Clv.P. 62.1; Cencich v. Miller-Stout, 2013
WL 693209 at *1 & n.l (W.D. Wash. 20 13)(unpub.) (discussingFED.R.App.P. 12.1 and noting
that "[t]he Advisory Committee Notes to FED.R.CIV.P. 62.1 explain that the rule was adopted
for the purposes ofproviding a clear procedure for district courts to follow whenever any motion
is filed that the district court cannot grant because of a pending appea1.").

2 In addition to the $350 statutory fee, aU parties filing civil actions on or after May 1,
2013, must pay an additional administrative fee of$50. See 28 U.S.C. § 19l4(a), (b); Judicial
. Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 1,2013). However,
28 the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP.
Id.

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IFP & dsm.wpd

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13cv2573 WQH (RBB)

1 monthly balance in the account for the past six months, whichever is greater, unless the
2 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
3 institution having custody of the prisoner must thereafter collect subsequent payments,
4 assessed at 20% ofthe preceding month's income, in any month in which the prisoner's
5 account exceeds $10, and forward those payments to the Court until the entire filing fee
6 is paid. See 28 U.S.C. § 1915(b)(2).
In support of his new IFP application, Plaintiff has again failed to provide the

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8 certified copies of his trust account statements as required by 28 U.S.C. § 1915(a)(2) and
9 S.D. CAL. ClvLR 3.2. Andrews, 398 F.3d at 1119. However, because Plaintiff has
10 declared under penalty of perjury that he is not employed at RJD, receives no payments
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from RJD, has no money or assets whatsoever, currently owes restitution, court costs,

12 and fines, and he has attached photocopies of a CDCR 22 Inmate/Parolee Request which
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indicates two attempts, on January 16,2014, and again on January 26,2014, to obtain

14 the trust account statements required by 28 U.S.C. § 1915(a)(2) from RJD trust account
15 officials to no avail, the Court hereby re-opens Plaintiff s case and GRANTS his Motion
16 to Proceed IFP (ECF Doc. No. 10). See 28 U.S.C. § 1915(b)(4)(providing that "[i]n no
17

event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means

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by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28

20 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal ofa prisoner's IFP case
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based solely on a "failure to pay ... due to the lack of funds available to him when

22 payment is ordered.").
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And while the Court can assess no initial filing fee under these circumstances, the

24 full balance of the $350 total owed in this case shall be collected by the Secretary ofthe
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California Department of Corrections and Rehabilitation ("CDCR") and forwarded to the

26 Clerk ofthe Court pursuant to the installment payment provisions set forth in 28 U.S.C.
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§ 1915(b)(I).

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///

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III.

INITIAL SCREENING PER 28 U.S.C.

§§ 1915(e)(2)(b)(ii) AND 1915A(b)(1)

Notwithstanding Plaintiffs IFP status, the PLRA also obligates the Court to

3 review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who
4 are "incarcerated or detained in any facility [and] accused of, sentenced for, or
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adjudicated delinquent for, violations of criminal law or the terms or conditions of

6 parole, probation, pretrial release, or diversionary program," "as soon as practicable after
7 docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions ofthe
8 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
9 frivolous, malicious, fail to state a claim, or which seek damages from defendants who
10 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d
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1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

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1002,1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

13

All complaints must contain "a short and plain statement ofthe claim showing that

14 the pleader is entitled to relief." FED.R.Crv.P. 8(a)(2). Detailed factual allegations are
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not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by

16 mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
17 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining
18 whether a complaint states a plausible claim for relief [is] ... a context-specific task that
19 requires the reviewing court to draw on its judicial experience and common sense." Id.
20 The "mere possibility of misconduct" falls short of meeting this plausibility standard.
21

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Id.; see also Moss v. Us. Secret Service, 572 F.3d 962,969 (9th Cir. 2009).
"When there are well-pleaded factual allegations, a court should assume their

23 veracity, and then determine whether they plausibly give rise to an entitlement to relief."
24

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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("[W]hen determining whether a complaint states a claim, a court must accept as true all

26 allegations of material fact and must construe those facts in the light most favorable to
27 the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
28 § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").
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However, while the court "ha[s] an obligation where the petitioner is pro se,

2 particularly in civil rights cases, to construe the pleadings liberally and to afford the
3

petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

4 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985)), it may not, in
5 so doing, "supply essential elements of claims that were not initially pled." Ivey v. Board
6 ofRegents of the University ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and
7 conclusory allegations of official participation in civil rights violations are not sufficient
8 to withstand a motion to dismiss." Id.
9

A.

42 U.S.C. § 1983

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"Section 1983 creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights." Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 "is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

14 conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
15

and citations omitted). "To establish § 1983 liability, a plaintiff must show both (1)

16 deprivation of a right secured by the Constitution and laws ofthe United States, and (2)
17

that the deprivation was committed by a person acting under color of state law." Tsao

18 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
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B.

Respondeat Superior and Individual Liability

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First, Plaintiff names Matthew Cate, the former Secretary of the CDCR, and D.

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Paramo, Warden ofRJD, as Defendants. See Compl. at 1-2. However, his Complaint

22 contains virtually no allegations that either ofthese individuals knew of or took any part
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in any constitutional violation. "Because vicarious liability is inapplicable to ... § 1983

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suits, a plaintiff must plead that each government-official defendant, through the

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official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556

26 U.S. 662,676 (2009); see also Jones v. Cmty. Redev. Agency ofCity ofLos Angeles, 733
27 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must "allege with at least some
28

degree of particularity overt acts which defendants engaged in" in order to state a claim).

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Plaintiff alleges only that both Cate and Paramo are "in charge" ofthe CDCR and

2

"every facility at RJD" respectively. See Compl. at 2. Plaintiff's Complaint, however,

3 includes no further detail as to what Cate or Paramo specifically did, or failed to do,
4 which resulted in the violation of any constitutional right. Iqbal, 662 U.S. at 678 (noting
5 that FED.R.CIV.P. 8 "demands more than an unadorned, the-defendant-unlawfully6 harmed-me accusation," and that "[t]o survive a motion to dismiss, a complaint must
7 contain sufficient factual matter, accepted as true, to 'state a claim for relief that is
8 plausible on its face. ''') (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570
9 (2007)).
10

To the extent it appears Plaintiff seeks to sue former Secretary Cate and Warden

11 Paramo only by virtue of their positions and their supervisory duties over other
12

correctional or medical officials, in order to avoid the respondeat superior bar, his

13 pleading must include sufficient "factual content that allows the court to draw the
14 reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556
15 U.S. at 678, and contain a description of personal acts by each individual defendant
16 which show a direct causal connection to a violation of specific constitutional rights.
17

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is only liable for the

18

constitutional violations of his subordinates if the supervisor participated in or directed

19

the violations, or knew ofthe violations and with deliberate indifference, failed to act to

20 prevent them. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Taylor, 880 F.2d at 1045. If
21

there is no affirmative link between a defendant's conduct and the alleged injury, there

22

is no deprivation of the plaintiff's constitutional rights. Rizzo v. Goode, 423 U.S. 362,

23

370 (1976).

24

As currently pleaded, Plaintiff's Complaint similarly lacks specific "factual

25 content that allows the court to draw the reasonable inference" that either Cate or Paramo
26 may be held personally liable for any misconduct, and thus it fails to "state a claim to
27

relief [against either of them] that is plausible on its face." Iqbal, 556 U.S. at 678 (citing

28

Twombly, 550 U.S. at 556, 570). Instead, it appears Plaintiff seeks to sue Cate and
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Paramo based on the positions they hold and not because of any individually identifiable

2 conduct alleged to have caused him harm. "Causation is, of course, a required element
3 of a § 1983 claim." Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir.
4 1999). "The inquiry into causation must be individualized and focus on the duties and
5 responsibilities of each individual defendant whose acts or omissions are alleged to have
6 caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)
7 (citing Rizzo, 423 U.S. at 370-71). Therefore, Plaintiffhas failed to state a claim against
8 Cate and Paramo and his Complaint requires dismissal on this basis pursuant to 28
9 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at1126-27; Resnick, 213 F.3d
10 at 446.
Inadequate Medical Care Claims

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C.

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The remaining Defendants, Walker, Silva, Denbella, Chow, Newton, and John

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Doe, are all identified as doctors at RID, and are alleged to have failed to provide

14 Plaintiff with adequate medical treatment for a lower back injury after his arrival there
15 on March 28,2012. See Compi. at 2-4.
16

Specifically, Plaintiff claims that upon arrival, he was examined by Dr. Walker

17 who provided him with a "mobility impaired" vest and issued him a "chrono" or medical
18 authorization for wheelchair use. Id. at 4-5. Walker also advised Plaintiff to submit
19 "7362 medical slips" ifhis lower back problems continued. Id. at 5. Plaintiff alleges
20 that while he "was seen by Dr. Walker a few more times," each time complaining of
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lower back pain, Walker "did nothing to fix" him. Id.
Plaintiff alleges he was later examined by Defendant Doe "two to four times," but

23 "received no treatment." Id. at 5-6. When he continued to submit medical requestforms,
24 he was seen by Dr. Denbella, who is also alleged to have also provided "no treatment of
25 any kind," and to have told Plaintiff that if "he could not pay for his wheelchair, [he]
26 would have to return it." Id. at 6.
27

Plaintiff continued to request treatment, however, and was later examined by Dr.

28

Silva who "ordered MRI exams." Id. Plaintiff alleges these MRI results showed a
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"miraculous recover[y]" and that "there was no longer any kind ofinjur[y]." Id. at 7.

2 Silva advised Plaintiffto "stop submitting ... medical slips for his lower back," and "did
3 not provide ... any treatment." Id.
4

On April 17 ,2013, Plaintiffwas placed in segregation ("Ad-Seg") for unspecified

5

reasons, where he "continued to submit CDCR 7362 medical slips for his lower back

6 injuries." Id. While in Ad-Seg, Plaintiff was examined by Dr. Chow who "ordered a
7 (CT) scan and some nerve tests." Id. 3 Plaintiff was later examined by Dr. Newton, who
8 suggested Plaintiff seek "psychological treatment," and also informed him "she was
9 going to take his wheelchair." Id. at 8, 10. On October 17,2013, Plaintiff received a
10 CDC 1845 form, signed by Dr. Newton, revoking his wheelchair chrono. Id. at 12-13.
11

Plaintiff contends that he "has not experienced any miraculous recovery," and that

12 he "is unable to walk any distance" due to pain which "shoot[s] down his leg." Id. at 13.
13

He further admits that while he has "under[gone] at least (5) different MRl exams ... all

14 on his lower back," has had "at least (7) X-rays," "a (CT) scan," and a "nerve test in [his]
15 legs and back," Defendants have nevertheless failed to provide him adequate medical
16 care because they have "done everything everything except fix [his] lower back." Id.
17

The government is obliged under the Eighth Amendment to provide medical care

18 to incarcerated prisoners in its custody. See e.g., Estelle v. Gamble, 429 U.S. 97, 103
19 (1976). However, only "deliberate indifference to serious medical needs of prisoners
20 constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth
21
22

Amendment." Id. at 104 (citation and internal quotation marks omitted).
"A determination of 'deliberate indifference' involves an examination of two

23 elements: (1) the seriousness of the prisoner's medical need and (2) the nature ofthe
24 defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.
25
3 Plaintiff also claims both Dr. Chow and Dr. Newton conducted unwe1comed and
26 uncomfortable rectal exams after a colonoscopy revealed a growth which required removal in
December 2012, and despite the fact that Plaintlff"was told he would not neea another one for
27 at least 5 to 10 years." [d. at 7, 10-11. Plaintiffs Complaint alleges only inadequate medical
28 treatment related to his lower back, however; he does not appear to raise any addItional Eighth
Amendment violations related to his colonoscopy.

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1 1991), overruled on other grounds by WMXTechs., Inc. v. Miller, 104 F.3d 1133 (9th
2 Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 104).
3

"Because society does not expect that prisoners will have unqualified access to

4 health care, deliberate indifference to medical needs amounts to an Eighth Amendment
5

violation only ifthose needs are 'serious. '" Hudson v. McMillian, 503 U.S. 1,9 (1992),

6 citing Estelle, 429 U.S. at 103-104. "A 'serious' medical need exists ifthe failure to treat

7 a prisoner's condition could result in further significant injury or the 'unnecessary and
8 wanton infliction of pain. '" McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at
9 104). "The existence of an injury that a reasonable doctor or patient would find
10 important and worthy of comment or treatment; the presence of a medical condition that
11

significantly affects an individual's daily activities; or the existence of chronic and

12 substantial pain are examples of indications that a prisoner has a 'serious' need for
13

medical treatment." Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.

14 1990); Hunt v. Dental Dept., 865 F.2d 198,200-01 (9th Cir. 1989).
15

Plaintiffs allegations of chronic lower back injury and pain sufficient to

16 compromise his ability to "walk any distance," are sufficient to show an objectively
17 serious medical need. See Compl. at 13; McGuckin, 914 F.2d at 1059; Garner v.
18 Hazzard, No. 06-CV-0985, 2008 WL 552872, at *6 (N.D. N.Y. Feb. 27, 2008) (holding
19 that severe back pain, especially iflong-lasting, can amount to a serious medical need).
20 Thus, the Court finds, for purposes of screening pursuant to 28 U.S.C. § 1915(e)(2) and
21

§ 1915A, that Plaintiff has a serious medical requiring attention under the Eighth

22 Amendment. See McGuckin, 974 F.2d at 1059.
23

However, even assuming Plaintiffs back pain was sufficiently objectively serious

24 to invoke Eighth Amendment protection, he must also include in his pleading enough
25 factual content to show that all the doctors who treated him and who he wishes to sue,
26 acted with "deliberately indifference" to his needs. Id. at 1060; see also Jeff v. Penner,
27 439 F.3d 1091, 1096 (9th Cir. 2006). "This second prong-defendant's response to the
28 need was deliberately indifferent-is satisfied by showing (a) a purposeful act or failure
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to respond to [the] prisoner's pain or possible medical need and (b) harm caused by the

2

indifference." Jet!, 439 F.3d at 1096. "Deliberate indifference is a high legal standard,"

3 and claims of medical malpractice or negligence are insufficient to establish a
4 constitutional deprivation. Simmons v. Navajo County, 609 F.3d 1011, 1019 (9th Cir.
5 2010) (citing Toguchi v. Chung, 391 F.3d 1051,1060 (9th Cir. 2004)).
6

As currently pleaded, the Court finds none of Plaintiff's allegations as to

7 Defendant Doctors Walker, Silva, Denbella, Chow, Newton, or Doe contain facts
8 sufficient to show that they were deliberately indifferent to his plight by "knowing of and
9 disregarding an[y] excessive risk to [Plaintiff's] health and safety ." Farmer v. Brennan,
10 511 U.S. 825, 837 (1994). Officials "must be both aware of facts from which the
11 inference could be drawn that a substantial risk of serious harm exist[ed], and he must
12

also [have] draw[n] the inference." Id. Specifically, then, Plaintiff must allege "factual

13

content," Iqbal, 556 U.S. at 678, which demonstrates "(a) a purposeful act or failure to

14 respond to [his] pain or possible medical need, and (b) harm caused by the indifference."
15

Wilhelm v. Rotman, 680 F.3d 1113, 1122 (citing Jet!, 439 F.3d at 1096). The requisite

16 state of mind is one of subjective recklessness, which entails more than ordinary lack of
17 due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation
18 marks omitted); Wilhelm, 680 F.3d at 1122.
19

Here, while Plaintiff repeatedly concludes he "received no treatment for his lower

20 back injuries," see Compl. at 5, and accuses his doctors of failing to "fix" his back, id.
21

at 5, 15, his pleading also shows he was examined by no fewer than six different doctors

22

on at least eleven separate occasions, was provided with a mobility vest, permitted

23

wheelchair use for more than a year, underwent "5 different MRIs," "7 x-rays," a CT

24 scan, and had nerve-testing conducted all in response to his continued complaints of back
25 pain. Id. at 4-8; 15. And while Plaintiff clearly disagrees with Defendants as to the
26 results of his diagnostic tests and his doctors' assessments as to his continued need for
27 a wheelchair, these disputes, without more, do not provide sufficient "factual content"
28 to plausibly suggest that any Defendant acted with deliberate indifference by purposely
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1 ignoring his pain or medical condition. Iqbal, 556 U.S. at 678 ("The plausibility
2 standard is not akin to a 'probability requirement,' but it asks for more than the sheer
3 possibility that a defendant has acted unlawfully."). "A difference of opinion between
4 a physician and the prisoner-or between medical professionals-concerning what medical
5 care is appropriate does not amount to deliberate indifference." Snow v. McDaniel, 681
6 F.3d 978,987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240,242 (9th Cir. 1989));
7 Wilhelm, 680 F.3d at 1122-23. Rather, Plaintiff "must show that the course oftreatment

8 the doctors chose was medically unacceptable under the circumstances and that the
9 defendants chose this course in conscious disregard of an excessive risk to [his] health."
10

Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks

11 omitted).
12

Indeed, in Estelle the Supreme Court rejected a prisoner's Eighth Amendment

13

claim that prison doctors should have done more by way of diagnosis and treatment after

14 he injured his back, and emphasized that "the question whether an X-ray or additional
15 diagnostic techniques or forms oftreatment is indicated is a classic example of a matter
16 for medical judgment" and "does not represent cruel and unusual punishment." 429 U. S.
17 at 107. The same is true in this case.
18

Accordingly, the Court finds that Plaintiffhas failed to state an Eighth Amendment

19

inadequate medical care claim against Defendants Walker, Silva, Denbella, Chow,

20 Newton and Doe, and that these claims must be dismissed pursuant to 28 U.S.C.
21

§ 1915(e)(2) and § 1915A(b). See Lopez,203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

22

D.

23

Finally, Plaintiff also alleges that he "believes ... the actions by the RJD[] officials

24

are in retaliation for [his] civil action and 602's," see Compl. at 14, and mentions another

25

civil law suit, filed in the Eastern District of California "relating to the cause of his lower

Retaliation

26 back injuries." Id. at 8.
27

"Within the prison context, a viable claim of First Amendment retaliation entails

28 five basic elements: (1) [a]n assertion that a state actor took some adverse action against
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1 an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4)
2 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not
3 reasonably advance a legitimate correctional goal. See, e.g., Resnick, 213 F.3d at 449;

4 Barnett [v. Centoni], 31 F.3d [813] 815-16 [(9th Cir. 1994)]." Rhodes v. Robinson, 408
5 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
6

As currently pleaded, Plaintiffs Complaint fails to include "sufficient factual

7 matter" which identifies any particular adverse action was taken against him by any
8 named Defendant because he exercised any constitutional right, e.g., filed administrative
9 grievances via the CDCR's Inmate/Appeal602 process, or initiated another civil rights
10 action in the Eastern District. See Iqbal, 556 U.S. at 678; Soranno's Gasco, Inc. v.
11 Morgan, 874 F .2d 1310, 1314 (9th Cir. 1989) (plaintiff must show that the protected
12 conduct was a "substantial" or "motivating" factor in the defendant's decision to act);
13

Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274, 287 (1977). Plaintiff

14 has further fail to allege facts sufficient to show that any Defendant's actions failed to
15 advance a legitimate correctional goal such as "preserving institutional order and
16 discipline," Barnett, 31 F.3d at 815-16, and fails to allege that his First Amendment
17 rights were in any way "chilled" as a result. See Rhodes, 408 F.3d at 568-69 (noting that
18 while a prisoner need not show that "his speech was actually inhibited or suppressed,"
19 he must show the adverse action taken against him "would chill or silence a person of
20 ordinary firmness from future First Amendment activities.") (internal quotation omitted).
21

Because Plaintiffis proceeding in pro se, however, the Court having now provided

22 him with "notice ofthe deficiencies in his complaint," will also grant him an opportunity
23 to "effectively" amend. SeeAkhtarv. Mesa, 698 F.3d 1202,1212 (9th Cir. 2012) (citing

24 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).4
25
4 In addition, the Court again notes, as it did in its January 2, 2014 Order, that while
26 Plaintiff need not allege in his Complaint that he has exhausted all administrative remedies as
are available pursuant to 42 U.S.C. § 1997e(a), see Jones v. Bock, 549 U.S. 199,216 (2007)
27 (concluding tIiat the "failure to exhaust is an affirmative defense under the PLRA, and ... inmates
28 are not required to specially plead or demonstrate exhaustion in their complaints."), it is patently
unclear from the face of his pleading, the exhibits attached, and from an additional document
he has filed entitled "Notice of Efforts to Exhaust" (ECF Doc. No.6), whether all the claims
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1

IV.

CONCLUSION AND ORDER

2

Good cause appearing, IT IS HEREBY ORDERED that:

3

1.

This civil action is hereby re-opened, and Plaintiff s Motion to proceed IFP

4 pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 10) is GRANTED.
5

2.

The Secretary of the California Department of Corrections and

6 Rehabilitation, or his designee, shall collect from Plaintiff s prison trust account the $350
7 filing fee owed in this case by collecting monthly payments from the account in an
8 amount equal to twenty percent (20%) ofthe preceding month's income and forward
9 payments to the Clerk of the Court each time the amount in the account exceeds $10 in
10 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY
11
12

IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

3.

The Clerk ofthe Court is directed to serve a copy ofthis Order on Jeffrey

13 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
14 942883, Sacramento, California, 94283-0001.
15

IT IS FURTHER ORDERED that:

16

4.

Plaintiffs Complaint is DISMISSED without prejudice for failing to state

17 a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is
18 GRANTED forty five (45) days leave from the date this Order is entered into the Court's
19 docket in which to file a First Amended Complaint which cures all the deficiencies of
20 pleading noted above. Plaintiffs Amended Complaint must be complete in itselfwithout
21

reference to his original pleading. See S.D. CAL. CIvLR 15.1; Hal Roach Studios, Inc.

22

v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended

23 pleading supersedes the origina1."); Kingv. Atiyeh, 814 F.2d 565,567 (9th Cir. 1987)
24
25 raised in Plaintiff s Complaint have been fully exhausted prior to the initiation of this suit. See
Compl. (ECF Doc. No.1) at 16, 20 & Exs. B-G; PI.'s Notice (ECF Doc. No.6) at 5 ("Plaintiff
is trying to exhaust, but can only do so when his appeal is returned to him. At this rate of
26 response, Plaintiff can not be certain of when the eXhaustion process will be completed.").
27 Wliile the Court is not dismissing Plaintiffs Complaint on this oasis, he is hereby advised that
all "available remedies must De 'exhausted' oefore a complaint under ~ 1983 may be
28 entertained," and that "[e]xhaustion subsequent to the filing of suit will not suffice." McKinney
v. Carey, 311 F.3d 1198, 1199 (quoting Booth v. Churner, 523 U.S. 731, 738 (2001)(emphasls
added».
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1 (citation omitted) ("All causes of action alleged in an original complaint which are not

2 alleged in an amended complaint are waived.").
3

Should Plaintiff fail to file an Amended Complaint within the time provided, the

4

Court shall enter a final order dismissing this civil action without prejudice based on

5 Plaintiffs failure to state a claim upon which re1iefcan be granted pursuant to 28 U.S.C.
6
7

§ 1915(e)(2) and § 1915A(b).
5.

The Clerk ofthis Court shall serve a copy ofthis Order upon the Clerk

8 of the United States Court of Appeals for the Ninth Circuit for filing in reference
9 to its April 15,2014 Order of remand in Appeal Case No. 14-55476, as soon as
10

practicable.

11

12 DATED:

HON. WILLIAM . HAYES
United States D' fict Judge

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